“This Far and No Farther”: Baselines and the Individual Insurance Mandate

Much of the difference of opinion over the constitutionality of the individual insurance mandate turns on a difference of opinion about the appropriate baseline for evaluating Congressional power. For 60 years, law professors taught that Congress had unlimited discretion with respect to using its commerce power to regulate the national economy. They held this view notwithstanding that the Supreme Court had never ennunciated such a position and that we now know that some Justices on the New Deal Court considered doing so in Wickard but declined to pull that trigger. Virtually all “progressive” academics — and many, if not most, “conservatives” whose constitutional views were formed before 1995 — accepted and continue to accept this proposition as the baseline against which Congressional legislation was to be assessed.

Regardless of whether this was ever the baseline accepted by the Supreme Court, in 1995, the Supreme Court arguably (more on this in a moment) rejected it in favor of another: Congress has discretion with respect to all the powers that have been upheld up to that point, but any claim of implied Congressional power beyond that point was constitutionally suspect. Because Congress had never before attempted to regulate wholly intrastate noneconomic activity, a majority of the Court in Lopez and again in Morrison (over the empassioned dissent of those Justices who hewed to the other baseline) said it would not recognize this new extension of power.  Raich can be understood as an effort to restrain Congress from exercising a power it had long used: the power to regulate the intrastate cultivation, possession and distribution of an intoxicating substance.  It can also be understood as an effort to sustain an “as applied” challenge to a facially constitutional exercise of the commerce power, and no such challenge had ever before succeeded.

Since Lopez and Morrison have now become fixed poles of constitutional decision, there are two competing readings of these cases depending on which baseline one holds.  Those who continue to hold the baseline of unlimited Congressional discretion – whose politics can be progressive or conservative – construe Lopez and Morrison as identifying a relatively narrow exception to this power. Since the individual insurance mandate does not clearly fall within this exception, it is therefore deemed by them to be clearly constitutional. This is why, I believe, so many constitutional law professors thought this case was so easy.

In contrast, those who interpret Chief Justice Rehnquist’s opinions in Lopez and Morrison as rejecting that baseline in favor of the position that Congress may go as far as it has gone in the past, but no farther view the mandate quite differently.  Because the power to require all citizens to enter into contracts with private companies is a new or “unprecedented” claim of power, it is at minimum constitutionally suspect and at maximum unconstitutional.  Given the baseline, the burden is on the government to justify this expansion of federal power as both necessary and proper.  As important, there must be some identifiable and judicially administable limit on its exercise.

Ultimately, it will be up to the individual Justices to decide which baseline they wish to employ.  Do Lopez and Morrison represent merely symbolic “sport” cases as so many academics now believe?   Or did these cases (along with cases such as New York, Printz and Alden) establish a post-New Deal baseline (“this far and no farther”) beyond which Congress may not go without meeting a serious burden of justification?  Because this case will tell us which baseline the Roberts Court wishes to affirm for the future, it is both a very big deal and not all that easy to predict simply on the basis of prior cases and doctrines.  If the Roberts Court adopts the first baseline, however, it will not only be repudiating what I believe to be the best reading of the Rehnquist Court’s landmark decisions establishing the so-called New Federalism, it will finally be doing what even the New Deal Court could not bring itself to do.  Regardless of how they eventually rule, one can well understand why the Court would feel the need for 3 days of oral argument to consider this decision.

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