Judge Vinson’s Tea Party Manifesto

[Note: This is a guest post from Prof. Mark Hall. He has drafted an article on Commerce Clause challenges to the ACA, and has this rapid response to today’s ruling on that issue. –Frank Pasquale]

On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto.  At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

As I’ve written elsewhere, the same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals.  But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides:  “(all of [these] are obviously distinguishable)” (p. 39).    Instead, he twice cites and quotes the lower court opinion in Schechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle of Lochner jurisprudence.

Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce.   What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause.  In refusing to sever the individual mandate, he not only concedes the mandate “is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to . . . what Congress was ultimately seeking to accomplish,” he astonishingly devotes about ten pages (63-74) to hammering home the mandate’s necessity, explaining, for instance, that:

this Act has been analogized to a finely crafted watch . . . . It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper

So if the mandate is so clearly necessary, why is it not “proper.”  The answer, as in Virginia’s Judge Hudson’s opinion, is a virtual tautology:  because the Commerce Clause does not permit it.  Here are critical excerpts:

the Clause is not an independent source of federal power (p. 58) . . . Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power. (p. 60)

In light of [United States v. South-Eastern Underwriters], the “end” of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly “legitimate” and “within the scope of the constitution.” But, the means used to serve that end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” . . . The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers.  (p. 62)

The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is.   Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”  (p. 63)

My full rebuttal is here, but in brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power.  And this is inconsistent with Lopez and with Justice Scalia’s concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”  Thus, we still await a convincing explanation of why rejecting the “necessary and proper” defense is consistent with recent Supreme Court opinions, authored or joined by most of the conservative justices.

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17 Responses

  1. Slow down says:

    A couple things. Were Souter’s opinions in Kelo and Printz “tea party manifestos?” Each spent significant time on the founders’ potential views of the legislation at issue.

    You also need to look up the definition of tautology. You don’t seem to quite have a handle on it.

    Finally, rather than takings why not look at the much closer parallel in the contract clause. A fed gov barred from infringing the obligation of contracts could not, consistent with that, engage in the much more invasive practice of forcing contracts with private business on practice.

    Don’t get me wrong–I’m a single payer person–but this analysis is, I’m aftaid, pretty weak and a bit cheap.

  2. the mistake in your logic is this. its not enough to show that the law is necessary and proper. you have to show that it is necessary and proper to carry into execution the stuff that is constitutional. that phrase “carrying into execution” is in the clause itself.

    So for instance, you would say that the mandate is necessary to avoid the obvious problems created by the pre-existing condition rule. but that rule doesn’t have any problem being executed without the mandate. so the mandate is necessary, just not necessary for the right reasons.

    and that is what the judge is talking about when he says that the N&P clause only talks about means.

  3. AFG says:

    I asked the following hypothetical above (see here http://www.afoolsgame.com/?p=63): Congress imposes an additional flat income tax equivalent to the size of the penalty on everyone in the country, and then exempts people from that tax (or gives them a tax credit) if they have health insurance meeting the minimum standards set by ACA.

    A number of commentators responded with something like “that would be constitutional, but that is not what the bill did.” Which is obviously true (there are Supreme Court cases detailing the difference between regulatory penalties and taxes, plus the incidence of the tax/subsidy switches from the inactivity to an activity), but that kind of misses the point.

    What I was trying to get at was that while LEGALLY there is a difference, FUNCTIONALLY it would have the same effect. Remember you are not sent to jail if you violate the individual mandate, you just have to pay a penalty. If the tax in my hypothetical was precisely the same size as the penalty, then everyone would have the exact same incentive that they have under the ACA. The CBO even estimates that the ACA will only cover like 95% of the population, because some percentage of the population will choose to pay the fine instead of buying insurance.

    I think this raises two important ideas. First, it shows how the legal distinction that opponents are trying to make between inactivity and activity is totally nebulous. If the government is not allowed to penalize inactivity, then it can just incentivize the opposite activity. Its been conservative mantra for decades that the incidence of the tax is irrelevant to the actual costs (which is true), so why can’t we see the individual mandate in the same light of merely being another way to allocate resources.

    Second, it begs the question – and this is what I don’t understand and want somebody to help me with – of why anybody would care and why there SHOULD be a legal distinction??? The government, even if opponents are successful at the Supreme Court, would still have the constitutional power to do things that have the exact same FUNCTIONAL effect. You will have no greater liberty, because the decisions you can make and the incentives you have to make them won’t have changed.


  4. Slow down says:

    If the mandate is deemed unconstitutional, so too would be your tax. Just as in other areas of the law, e.g., in civil litigation when distinctions are made between damages and a “penalty” regardless of what the court, or a statute, calls the payment, the same analysis would apply to your “tax.” the question of what a tax is involves an analysis of it’s structure and impact, not just what congress calls it. Once the intent beyond it is revealed, itnwouldnt qualify as a tax whatever it’s called n

    So the point is legally untenable, but also practically so. Many uninsured have no income, andnso cannot legally pay an income tax, or not not earn enough to qualify for paying a tax. So even if legal, it wouldn’t be effective.

  5. Mark Hall says:

    To “Slow down”:

    For another scholar who considers Judge Vinson’s reasoning tautological, see http://www.acslaw.org/node/18213 (Also, note my use of “virtual”).

    Using the contracds clause the way you suggest was abandoned with the Lochner era.

    Perhaps I was a bit strong with “Manifesto,” but I’m hardly the only one to remark on the almost-gratuitous reference to the Boston Tea Party. See, for instance:

  6. Chris Taus says:

    As to how such a development would relate to healthcare services, if you make it too easy for people to access healthcare and too difficult for insurance companies to provide it, you will at the very least, cause a shortage of services. Without the regular balancing mechanism of price and profit, such needing to be free from government interference, you will see those in power assigning the scarce amount of services to selected groups.

  7. Slow Down says:

    The Lochner folks (wrongly) relied on a liberty of contract right under due process, not the Contracts Clause (which, it is true, has subsequently been read out of the constitution). Whatever the case, your Lochner point is a complete non-sequitor. Your post included a point about the fact that the “founders” included the takings clause, so basically how could a dressed-up modern-day taking be unconstituional. My point was that they also included a contracts clause, which is far more on point to the issue. The fact that the Supreme Court has de facto amended the constitution by making contract clause claims impossible to make out has nothing to do with what the founders would have believed.

    No matter how many scholars join your point, Judge Vinson’s analysis that the individual mandate is not “proper” because it exceeds Congress’ reach is not “tautological,” but rather a product of any analysis rejecting a “necessary and proper” based claim. Take a clearer example: a mandate that we all eat three servings of broccoli a day might be necessary to realize savings in health care, but would be improper because the mandate would exceed delegated powers. That’s not a tautology, it’s a piece of legal analysis.

    Hence, “slow down.” Your reasoning, and now counter-argument, is sloppy.

  8. Mark Hall says:

    To: Slow Down
    I shouldn’t engage with an anonymous repeat insulter, but the following points trump my better judgment:

    1) Giving bite to the contracts clause is certainly thought of by prominent legal scholars as part and parcel of the Lochner era. See, for instance, Cass Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873, 890: “The most conspicuously Lochner-like provisions in the Constitution are the contracts and takings clauses, especially in their incorporation of the status quo and of common law principles. . . . The contracts clause protects a species of private property; it thus grows out of the same framework as Lochner. But in the last fifty years, the constraints of the contracts and takings clauses have been significantly curtailed, in part for the same reasons that led to the abandonment of Lochner itself.”

    2) There is (or should be) a very clear constitutional distinction between purchasing broccoli and having to consume it. A purchase mandate implicates only economic liberties. A consumption mandate implicates bodily integrity. The latter (but not the former) is protected by substantive due process, which is why it can’t be mandated, even if the CC or N&P Clause allow purchase mandates. Judge Vinson’s and others’ equating of purchase with consumption, and health insurance with going to the doctor, demonstrates their affinity for Lochner-style reasoning that sees the two types of liberties (economic and bodily privacy) as being on an equal plane.

    3) Fine, I’ll drop “tautologic” and substitute “circular,” or simply “redundant.” Either way, it makes little sense (but I’m NOT saying NO sense AT ALL), to argue that something is not permitted by the N&P extender clause simply because it’s not independently permitted by the base CC in the first place.

    4) This line of argument not only folds back on iteslf, it does so in a way that is contradicts another argument. Challengers argue that “proper” must be given independent significance from “necessary”; otherwise it’s simply a redundant term to necessary. But giving “proper” the particular meaning of not-enumerated ends up making the entire N&P clause a virtual redundancy. So this argument tries to have it both ways on the question of whether any constitutional redundancy is permitted.

    5) I think it makes a whole lot more sense – PLUS it’s fully consistent with actual Sup. Ct. analysis – to reason as follows: Necessary measures can expand enumerated powers unless they improperly violate some other constitutional norm, such as those in the Bill of Rights. Parsed that way, both terms have independent function. Necessary measures augment express powers, but “proper” reminds us they don’t trump other constitutional restrictions (which in theory they might otherwise do).

    6) To complete the chain of argument: An insurance mandate does not violate the 5th or 10th Amend’s (for reasons addressed elsewhere). You’re welcome to argue the mandate violates the Contracts Clause, but good luck finding any precedential or even scholarly support for that.

  9. Slow Down says:

    I wish you didn’t feel insulted. You included–in your title–the terms “Tea Party Manifesto” and then used the loaded (and actually insulting I’m sure to most jurists) Lochner comparison in a post purporting to discuss a legal opinion that lacked even a hint of laizze fair influence. On that basis alone you should expect some push back, setting aside whether your reasoning supports the thesis or title. I mean nothing personally. (And, though irrelevant, I’ll reiterate I’m a single-payer supporting liberal democrat).

    As I noted (“whatever the case”) the more important point I was making about the Contracts Clause was that Lochner era treatment of the clause is irrelevant to the issue of “the Founders” view of the Commerce Clause, not the Supreme Court’s view of either clause at any time. I assumed you were thinking about due process and not the Contract Clause because the Lochner era’s impact on the former is more frequently discussed (if you continue on in the Sunstein source, you’ll see as much). Regardless, the unrebutted point is that the Founders’ inclusion of the Contracts Clause is, to me, more probative of its view on forced contracts than the inclusion of the takings clause. Hence, I said “why not take a look at” it. If the point is wrong, Lochner isn’t the reason it’s wrong.

    Next, while I used the term “broccoli,” I was not delving into the thicket of whether a mandate equals forced consumption, but rather raising an example as a point of reference to clarify the point about what is “proper” or not under the N&P clause. I understand that this is an important issue to you, but it’s besides the point to what we were discussing. Our back-and-forth concerned instead whether finding something is improper because it does not fall under the Comm Cl delegation of power is “tautological” or, now, “circular.” Respectully, once you weigh conduct against a standard — the mandate against the commerce clause’s reach as defined by the Court, in light of “N&P jurisprudence — the resulting reasoning, while potentially WRONG, is linear. That’s all.

    Not sure why you believe your last point completes any chain of argument, as neither of us has mentioned the 5th or 10th Amendment, i.e., there is no “chain” (I agree on the 5th and 10th). And, as may be obvious by now, I wasn’t stating that the mandate might violate the Contracts Clause (see above for what I’ve clearly said twice).

    Finally, note that if someone came on and called your views “Korematsuian” because your view is consistent with a view that envisions broad federal power, I would have criticized the reasoning (if flawed) as well. That’s all I’m doing here. My preferred health care system is not being debated, so my only interest here is quality argument. Here, the mere facts that Tea Party folk and Lochner-resurrectionists (again, I’m neither) may like the result of the Vinson opinion, and that “tea party” was used in the opinion, is, to me, not probative one way or the other of the opinion’s substance.

    So I’m unpersuaded. But you’re a good guy. Hope you have a nice night.

  10. Anon321 says:

    Thanks for your analysis, Prof. Hall. Even though I disagree with Judge Vinson’s opinion, I think it comes much closer than Judge Hudson’s opinion to identifying the crux of the issue by recognizing the following:

    (1) that the core of the Act (the prohibitions on rescinding or denying coverage on the basis of preexisting conditions) represents a valid exercise of the Commerce Clause power;

    (2) that the individual mandate is actually a necessary incident to the exercise of that power — i.e., that this is not a case where Congress has called something “necessary” as a mere pretext, nor one in which Congress has attempted to rely on a long chain of claims of necessity; and

    (3) that the case therefore turns on whether the individual mandate is proper.

    If this is the template that other courts follow, it seems to bode well for the government’s position in two ways.

    First, if “propriety” is indeed the ground on which the battle will be fought, I think it will be difficult for the Act’s opponents to prevail. As you noted, the normal route for striking down a law that is necessary to the effectuation of an enumerated power is through individual liberties, including substantive due process. But this seems to be a non-starter. Judge Vinson’s main argument appears to be that, in order to be Necessary and Proper, a law must be within an enumerated power. As you also noted, this would render the clause virtually a nullity, and conflicts with a huge body of case law. Is there another argument concerning propriety that I’m missing? Do you think Vinson’s reliance on Printz has any legs to it?

    Second, the conclusion that the individual mandate is truly (not pretextually or inferentially) necessary also provides a perfectly adequate answer to the “broccoli mandate” argument that so many people find compelling. It’s extremely difficult to conceive of a law that would feature a broccoli mandate that played as necessary and central a role to the law as a whole as the individual mandate does to the ACA. If the gist of the argument is that we need a doctrine that provides a meaningful limitation on Congress’s power, the answer is that we have one: necessity. The individual mandate, as part of the ACA, passes the test; the broccoli mandate doesn’t.

  11. S.M. Abeles says:

    Right, as to Slow Down. The Vinson opinion is not a “tea party manifesto.” Even if one disagrees with the conclusion, it was based on a reasonable analysis of the arguments and much (not all, consistent with most opinions) precedent. Aside from a few theoretical and doctrinal disputes that reasonable people of any persuasion could have, the only evidence offered is the Boston tea party reference. A single reference does not a “manifesto” make.

  12. Slow Down says:

    Exactly. Some people — no matter how well-read, or how much comfort they are able to take in the fact that fellow scholars have repeated pieces of their argument — are just not cut out for the blogging format, or at least a format permitting comments. In that format one needs to make internally logical arguments without appeals to authority, and then take on the comments, if at all, directly, not with layers of non-sequitors. It’s not for everyone.

  13. non sequitur, not non sequitor says:

    One quick note: this analysis states that there is something wrong on virtually every page of Vinson’s ruling:


  14. Aside from a few theoretical and doctrinal disputes that reasonable people of any persuasion could have, the only evidence offered is the Boston tea party reference. A single reference does not a “manifesto” make.

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