“The Uneasy Case for the Affordable Care Act”

Duke law professor Stephen Sachs has a new essay. “The Uneasy Case for the Affordable Care Act,” responding to Erwin Chemerinsky on the constitutionality of the individual mandate.  Here is the abstract from SSRN:

The constitutionality of the Affordable Care Act is sometimes said to be an “easy” question, with the Act’s opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won’t be easy, and the arguments against it sound in law rather than politics.

Written to accompany and respond to Erwin Chemerinsky’s essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations — walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones.

Because the mandate’s opponents can find some support in existing doctrines, a decision striking down the mandate needn’t be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress’s powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right — reasons having more to do with constitutional theory than political preference.

(Hat tip: Legal Theory Blog)

This brief paper is a welcome addition to the debate over the individual mandate because it eschews categorical claims about how existing precedent applies to the mandate. As I have maintained for some time, there are strong arguments in favor of the individual mandate’s constitutionality, particularly under the Necessary and Proper Clause. But there are also strong arguments for the unconstitutionality of the mandate, particularly if one takes seriously the notion of judicially enforced limits on federal power.

That the constitutionality of the mandate is not an “easy” case is shown by the fact that its defenders have not coalesced around a simple and straightforward defense. The arguments put forward by prominent academics supporting the mandate (e.g. Balkin, Amar, etc.) have evolved substantially, and some early arguments in support of the mandate have been abandoned. The arguments contained in the Justice Department’s briefs have evolved substantially as well. Not only has the mandate divided the appellate courts, but those judges voting to uphold the mandate have adopted differing (and at times even conflicting) rationales. These are not the hallmarks of an easy case.

The constitutionality of the individual mandate will not be determined by a simple and straightforward application of existing precedent, as existing precedent only goes so far. Precedent will need to be supplemented with resort to foundational conceptions about the nature of federal power. Those who believe that Lopez, et al., are slight exceptions to expansive federal authority see constitutionality of the mandate as a natural extension of post-New Deal jurisprudence. Those who believe that Lopez, et al., marked a reassertion of underlying constitutional principles — as the opening line of Lopez would suggest — see the mandate as an anathema. Whichever way the Court goes (and readers know I believe the Court should strike it down), the Court will not need to overturn existing precedent to do it.