One more thing . . .

A key part of my analysis of the individual mandate’s constitutionality, as expressed in this paper that has not yet been published, is that there is no sound federalism argument for reading Congress’s power narrowly in the health care context (as opposed to things like education or family law) because health care is not a traditional state concern as that phrase is used in Lopez and Morrison.  Medicare proves that proposition to my mind, although you can cite plenty of other authority as well.

The Eleventh Circuit’s contrary conclusion on this point cannot withstand scrutiny.  Frankly, that portion of the opinion reads like something that an advocate would say.  (“I know that I have to say that health care is a traditional state concern to come under the precedents, so here’s my best shot.”).

Here’s another problem.  On Page 113, the Court frames one of the questions as “whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles.”  The key word here is “meaningful.”  I submit that there is nothing in the case law that says that the limits on the commerce power must be meaningful (whatever that means).  Limited means not unlimited.  Lopez and Morrison already state limits to the Commerce Clause.  Unfortunately for critics of the individual mandate, the boundaries that they describe (non-economic vs. economic) do not prohibit what Congress enacted last year.

Now I do think that a lower federal court could write a perfectly defensible opinion striking down the individual mandate that goes something like this:  (1) all of the Supreme Court’s Commerce Clause precedents involve activity; (2) this statute does not; and therefore (3) we cannot uphold this.  In the case of the Supreme Court, they could say “We will not expand our Commerce Clause cases to include inactivity.  We’ve gone this far and will go no farther.”

The problem for the Supreme Court is that there is no reason to create this distinction (well, except that it kicks the Obama Administration in the teeth). A clear line is great, but this is not a “rules-of-the-road” situation. There must be some rationale for establishing the line.  And I still don’t know what that is.  There is no individual liberty interest because the states can regulate inactivity.  There is no states’-rights interest because health care is already regulated to the hilt by the federal government.  What other justification is there?

My bottom line is that I think the individual mandate should be repealed, but it’s not unconstitutional.

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10 Responses

  1. Brett Bellmore says:

    How’s this for a rationale: “We’ve already gone way too far in misinterpreting the interstate commerce clause into a general grant of regulatory power. Reliance interests make us reluctant to undo this mistake, but the fact that it IS a mistake obligates us to not extend it further.”

  2. Gerard Magliocca says:

    It’s a mistake because . . .?

  3. Brett Bellmore says:

    Because the power to regulate interstate commerce isn’t, on it’s face, the power to regulate things other than interstate commerce merely because they might have some effect upon interstate commerce?

    Because, in short, Wickard v Filburn was wrongly decided?

  4. Gerard Magliocca says:

    Well, I was not clear in my first comment. I understand your position, but what I mean is why do you hold that view? One explanation if that you’re a formalist on this issue–the Commerce Clause means a certain thing and cannot mean something else just because people might like it to. Another is that you are a functionalist in this respect–reading the Commerce Clause more narrowly will be good for America. Or you might hold both views.

  5. Brett Bellmore says:

    I suppose I do take both positions, but regard the formalist position as the only one the courts should have any interest in. What a constitution should mean is a matter which should only be of concern to people writing them, or deciding whether or not to ratify or amend them. Once that latter has happened, they already have meanings, and the job of the judiciary is to enforce them. Judges who can’t bring themselves to do that should find another line of work.

    The problem, of course, is that at some point politicians who themselves don’t like that meaning, and understand that they don’t have the support to get it amended to something more to their liking, realized that suborning the judiciary is quite a bit easier, and not subject to the states refusing to ratify.

    The fact that the constitutionality of federal actions is adjudicated by a judiciary nominated and confirmed by federal officeholders represents perhaps the most fundamental structural flaw of the Constitution, and now that the political class is aware of it, they’re never going to forget about it. The Constitution isn’t going to be worth a bucket of warm spit until it’s fixed.

  6. A.J. Sutter says:

    Brett’s comments illustrate nicely some of the popular sentiments mentioned in Jack Balkin’s Constitutional Redemption book and the related symposium here earlier this month: the Constitutionalization of all supposed wrongs, and a fierce devotion to a “Constitution” that isn’t actually the Constitution.

  7. Brett Bellmore says:

    Balkin is a living constitutionalist whose shtick is pretending he’s some kind of “originalist”, in an effort to defeat originalism by depriving the word of any meaning. He wants to replicate what Fabian socialists did to the term “liberal” in the early 20th century. At least, that’s what I take from his writings.

    It’s only natural that a living constitutionalist would deny that the written Constitution, the one actually ratified by the states, “is actually the Constitution”. As a living constitutionalist, making sure that it’s not the ‘actual’ (enforced) Constitution is his goal.

    In the meantime, our biggest problem today is not constitutional in nature, it is that we have a thoroughly corrupt political class. The constitutional issue I addressed was simply that, by allowing federal office holders to determine the composition of the federal judiciary which rules on the constitutionality of their own acts, the Constitution made it’s own circumvention too easy for that corrupt political class to accomplish.

    Should we ever overcome that culture of political corruption, we will need to address that structural flaw in whatever charter of government follows the Constitution, or we will see the present circumstances speedily replicated. Once such an ‘exploit’ has been discovered, it will not be forgotten, and a constitution which incorporates it will be doomed from the outset.

  8. Anon. says:

    I’m curious, why do you think the mandate should be repealed? Have you posted about this policy preference thus far?

  9. Gerard Magliocca says:

    I’d have liked them to try incentives to get the uninsured to buy insurance before going for a mandate, though I recognize that they might not work.

  10. PrometheeFeu says:

    I think Brett Bellmore makes a good point. I just don’t understand how the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes” becomes a blanket authority to regulate all economic matters.

    It seems like the way the Commerce clause is often interpreted, it means that Congress has a right to achieve its goals relating to interstate commerce. But I think a more accurate reading of the Commerce clause is that Congress is only allowed to directly influence interstate commerce regardless of whether that will achieve its goals or not.