Guns, Broccoli and the Individual Mandate – Thoughts on the Eve of Argument

Is Department of Health and Human Services v. Florida a replay of United States v. Lopez? I suggested as much in an October 2010 post, in which I wrote:

n both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, most informed observers were skeptical (if not incredulous) at the idea that the Supreme Court would take that step– only a handful of people saw the invalidation of the Gun Free School Zones Act as a realistic possibility; most saw it as extremely unlikely. In both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues. And in both cases, most informed commentators would expect the Supreme Court to side affirm federal power.

There are differences, of course. The debate over the Commerce Clause pre-Lopez was more for law geeks than the public: It concerned the likelihood the Court would affirm the limitations of the federal commerce power for the first time in over fifty years in a low-profile case few had heard of, let alone cared about, and it lacked the broad political movement that exists over the individual mandate. Yet then, as now, the litigation occurred at a time when limited government political arguments were on the rise and now, unlike before, serious academics and court watchers believe that, as a predictive matter, the constitutionality of the individual mandate is an “open question.” Nonetheless, I can’t avoid the sense of deja vu — but maybe that’s wishful thinking.

Since then, the debate over the constitutionality of the individual mandate has continued to follow the script. Prevailing elite opinion is dismissive of the arguments against the mandate, just as it was dismissive of the challenge to the GFSZA. Yet then, as now, defenders of the federal law have a difficult time reconciling their arguments with meaningful limits on federal power. Asked to identify something beyond the scope of the federal commerce power in Lopez, the Solicitor General came up empty. Asked to identify how the Supreme Court could uphold federal power to compel participation in commerce as a regulation in commerce, without green-lighting a near infinite power to command private activity the SG’s office has also had a difficult time identifying the class of activities subject to regulation. This is one reason the SG’s office has shifted its emphasis from “commerce” to what is “necessary and proper” and remains concerned about the “broccoli question.”

Whereas some academics and commentators protest the mandate presents an easy case, those who actually have to argue the case in court recognize the need to reaffirm limits on federal power, even as they approve of the individual mandate.  The difficulty in maintaining this position is one reason I have become  more skeptical of the mandate’s constitutionality over time.  (My initial posts expressing skepticism of the anti-mandate arguments are here and here.) Harvard’s Charles Fried may be comfortable proclaiming that Congress has the power to command all Americans to purchase broccoli or any other good or service, but he also felt Congress had the power to regulate the possession of guns in or near schools. Indeed, as the University of Pennsylvania’s Ted Ruger recently recounted, Fried did not even teach the commerce clause prior to Lopez, as he did not believe the clause was relevant anymore.  Many of those defending the mandate today felt much the same way, and have sought to minimize the importance of Lopez (and Morrison) ever since.  Yet the Fifth Circuit then, and the Eleventh Circuit now, took the admonition that ours is a government of limited and enumerated powers more seriously, and invalidated an unprecedented assertion of federal power as a step too far. Then, a majority of the Supreme Court followed suit. Will they now?

As I noted two years ago, the statutory provisions at issue in HHS v. Florida are far more consequential provision than was at issue in Lopez.  Few Americans had heard of the GFSZA, and even fewer had an opinion as to its constitutionality.  Does this mean the challenges will fail?  It is much easier for a court to invalidate a small piece of symbolic legislation than a major social reform.  And yet, the Court has, at times, been willing to cut wide swaths through the federal code or confront the political branches.  Dozens of statutory provisions were invalidated byINS v. Chadha, and the Court’s aggressive review of the poltiical branches’ wartime policy decisions in Boumediene were unprecedented, so it’s not as if the Court has not flexed its muscles in the recent past.

The GFSZA may have been obscure, but that also meant it was not unpopular.  If, as many believe, the Court is somewhat responsive to political pressures and popular sentiment, this could influence how the Court evaluates arguments that Congress has gone too far.  Polls continue to show widespread opposition to the mandate and widespread skepticism about its constitutionality. Indeed, it’s not very often that a  majority of states unite against a federal statute, particularly when preemption, sovereign immunity, or other state prerogatives are not at stake.   Thus a decision to strike down the mandate may offend academics and other legal elites, but it would not swim against the prevailing political tide or pick a fight with the political branches, as the Court did in Boumediene.

If pressed to make a prediction, it’s always safer to assume the federal government will prevail before the High Court.  It remains relatively rare for the Supreme Court to strike down a federal law.  Yet the Court has confounded such expectations before — and there’s a non-trivial chance it could do so again.  Here’s hoping.

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