March 23, 2010

The Commerce Clause and the individual mandate

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ... [and] [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...
United States Constitution, Article I, Section 8
I see our friend conservative law professor Rick Esenberg is fretting again (or is fretting still and forever, I suppose) over his bugaboo Barack H. Obama's inexorable march to socialism, so I thought I'd pull up some comments I left at his blog several months ago, on the subject of the constitutionality of the so-called "individual mandate."

It began when Prof. Esenberg's "nonpartisan" pal Charlie Sykes mocked Speaker Nancy Pelosi for stating an obvious truth: that Congress's power to regulate interstate commerce, including, obviously, that related to health care, is "essentially unlimited." Prof. Esenberg, as is his wont, leaped quickly to Charlie Sykes's defense.

It was essentially unlimited then, and it is today.

Anyway ...

Esenberg: So it is incorrect to say that nobody has suggested the Commerce power as justification for a mandate.

[The initial point, which still stands, is that Speaker Pelosi hadn't suggested it. And Charlie Sykes remains a partisan buffoon.]

Okay, you got me. Mark Hall did suggest it, although he too emphasizes primarily the tax power — my point, again.

But his Commerce Clause argument is secondary and lacks the required force and finally amounts to little more than an assertion plus an unconvincing appeal to the Necessary and Proper Clause (which should be renamed the Necessary Necessary and Proper Clause because it's always necessary when your claim of Commerce Clause reach is ... reaching).

It may be that the courts will devise a rationale for approving a federally mandated commercial purchase based on those courts' own prior holdings, but it would be in effect the fabrication of a power not expressly delegated to Congress by the Constitution.

(Indeed, the courts are more legitimately imbued with the power to consecrate an unconstitutional Act of Congress than is Congress to make that particular Act in the first place, but that's still no reason to accept as axiomatic that the courts' decisions are correct.)

As Prof. Hall puts it, the question of Congress's power to regulate the commercial aspects of health care is a trivial one easily disposed in favor of Congress but for one provision: the individual mandate. And Hall indicates "the only plausible objection is that mandating the purchase of insurance is not the same as regulating its purchase."

But he doesn't engage this objection, which he just allowed was crucial; rather, he proceeds instead to address his opponents' distinguishing regulating insurers from regulating people, but that is not the proper distinction. Prof. Hall thus glides past his own crucial distinction without so much as a how-do-you-do.

Objects that are "in" commerce

The most forceful statement of Prof. Hall's argument is that the individual mandate "directly affects interstate commerce," not that it is interstate commerce, which might be enough to satisfy some of the second- or fourth-generation interpretive case law, but I don't think it survives the level of scrutiny that must be applied when one is determining whether an Article I enumerated power even exists and in particular one so coercive on the part of the federal government (Super Duper Strict Scrutiny, h/t Arlen Specter).

In any event, the distinction is not between "what" and "who" but rather between what is "in" commerce and what is not. That is, the permissible objects of regulation are only those which are "in" commerce (or so the Court has taught since Chief Justice John Marshall, a contemporary of the Framers, presided).

Before the mandated purchase takes place, there is no commerce — and therefore nothing in commerce to regulate. It is only by Congress mandating individuals to make commercial transactions that there becomes something in commerce.

So the question presents as, 'Can Congress force a private party to initiate the transaction that will bring into existence the commerce Congress may regulate.' If the answer is yes, then it's not on account of anything the Commerce Clause says.

An analogy, not perfect, but illustrative: Biology makes no claim to the origin of life; it assumes life, and that is where its study begins, and not before.

Both necessary and proper

Although it may be necessary under certain circumstances for Congress to somehow initiate the commerce it wishes to then regulate (which it can do by taxing and spending), it has avenues other than forcing — on penalty — private commercial transactions. If there are other ways to accomplish the objective, then this one is by definition not necessary.

For example, Congress can initiate those transactions itself, which is how I suggested that single-payer, universal health care would more comfortably conform with constitutional requirements (not to mention satisfy the aspirational goals described in the Preamble).

But even if the individual mandate mechanism was deemed "necessary" according to some necessarily circular reasoning, it also needs to be "proper" and I'm finding it difficult to apply that adjective, in the constitutional context, to the creation of a brand new, clearly unenumerated power of Congress (or at the least, unenumerated within the Commerce Clause).

So did I pass the Federalist Society entrance exam? (I hope not.)


Jeremy R. Shown said...

The comments section is empty, which can only mean one of two things: no one bothered to read to the end (unlikely) or I have completely misunderstood this post (likely).

Am I correct in saying you are skeptical of the constitutionality of the individual mandate? The argument being something like this:

Congress clearly has the power to regulate interstate commerce, and it wants to regulate health insurance.

By forcing people to buy health insurance it is creating the interstate commerce that it will then turn around and regulate. It's hard to argue with the regulatory powers, since they are explicit.

A patina of legitimacy is applied to the forced purchase of insurance by calling it taxation, another clearly constitutional power.

Is this the case of two rights making a wrong?

illusory tenant said...

You got your likelys and your unlikelys bass ackwards there, brother.

I'm near certain the mandate will be defended as a tax. I'm skeptical it can be successfully defended as a commerce power. About the only thing that approach has got going for it is its novelty. The best thing you could say is it's never been decided before, so it's an open question.