Reply to Balkin on Unconstitutionality of a Health Insurance Mandate

In response to my posts on the unconstitutionality of a personal health care mandate, Jack Balkin passes along the link to his debate on this issue with David Rivkin and Lee Casey in PENNumbra. I strongly encourage readers interested in this debate to read their detailed exchange. There, Jack presents the most powerful defense of a health care mandate I have seen and Rivkin and Casey make some telling points in return. Perhaps their observation must predictive of the outcome of any constitutional challenge is this:

This version of the Commerce Clause would enable Congress to mandate any kind of spending by private individuals — e.g., buying new cars every few years — subject only to the limitations contained in the Bill of Rights. If Professor Balkin believes otherwise, we would appreciate having him describe what kind of purchase and other mandates directing private people how to behave would be beyond the reach of this Commerce Clause on steroids.

As the Court stated in the 1995 case of US v. Lopez:

To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local…. This we are unwilling to do.

As we say in our paper:

Nothing about the Court’s current composition suggests it would now be any more receptive to an argument that eliminates all limits on the commerce power.

I think my friend Jack’s reading of Raich is wrong. Just as most constitutional law professors who before 1995 engaged in the wishful thinking that the Commerce Clause had no limit, most law professors today read Raich as saying Congress may reach any activity so long as it is part of a broader regulatory scheme. I believe the Court said no such thing, and neither did Justice Scalia in his concurrence. And make no mistake. Raich is the best case defenders have to justify this unprecedented mandate of a private person to enter into a contract with a private company simply because the person is alive.

First of all, the majority in Raich found the activity in question — growing a fungible good like marijuana — to be “economic” and therefore within Lopez and Morrison. This may have been wrong–the Court’s only authority was a 40-year-old dictionary definition of “economic”–but this, rather then qualify or reject Lopez and Morrison, is how it justified its decision. True, in his concurring opinion, Justice Scalia focused on the power under the Necessary and Proper Clause to reach noneconomic behavior when doing so is “essential to a broader regulatory scheme that would be undercut” unless such activity is reached. But his concurrence has been misinterpreted in ways that I think he would welcome the opportunity to correct.

I truly believe that Justice Scalia’s invocation of the “essential to a broader regulatory scheme” rationale for reaching noneconomic activity (which originated in Lopez) was an artifact of the fact that Raich was an as-applied Commerce Clause challenge. In Raich we did not challenge the constitutionality of Congress’s power to reach the class of activities defined by the Controlled Substances Act: the production, distribution and possession of “Schedule I” controlled substances. Instead, we argued that the CSA was unconstitutional as applied to a subset of this class of activity: the wholly intrastate cultivation and possession of marijuana for medical purposes as authorized by state law. What the Court refused to do in Raich was carve out a subset of the statutorily defined class; and it was this refusal that Justice Scalia was justifying in his concurrence. He advocated deferrence to Congress’s judgment that it was essential to a larger regulation of interstate commerce that this subclass be included. That is all.

(In contrast, while we conceded the “larger regulatory scheme” principle at oral argument, we then contended that there must be some judicial scrutiny of whether it was “essential” that a subclass be included. So it was Justice Scalia’s deferential approach, not the principle he invoked, which was the basis of our disagreement.)

Lopez and Morrison were facial challenges to the authority of Congress to reach the statutorily defined “class of activities” as a whole: possessing guns within 1000 feet of schools and engaging in gender-motivated violence. So will any challenge to a personal health care mandate. In which case the “class of activities” will turn out to be the inactivity of abstaining from entering into a contract, or engaging in economic activities. Thus identified, it is reasonable to predict that there are five Justices who will find this class of (in)activity to be outside the scope of the Commerce Clause. I even suspect that Justice Scalia will be eager to show that his concurrence in Raich in no way undercut Lopez and Morrison, and in no way undermined the enumerated powers scheme.

Of course, “inactivity” can always be transmuted to “activity” in all the ways Jack describes. The action/inaction distinction — like any distinction — is contestable. But to keep matters real, IF this bill remains as unpopular after passage as it is now, 5 Justices will have zero trouble defining the relevant “class of activity” as INactivity and NONeconomic. They will see this as a singular opportunity to reaffirm Lopez and Morrison and to deny any suggestion that Raich overruled them, especially given that striking down this unprecedented mandate would undercut no other existing legislation (as was also true of Lopez and Morrison).

As for the tax issues, these become really technical really fast. I do not believe that the Senate bill imposes a tax –and the President has conveniently denied it is a tax. Calling a “fine” a tax does not make it so. But, if it is a tax, it is not a tax on any activity or on income. It is a direct or capitation tax on “the person” and must, therefore, be uniform throughout the states according to the census — which this proposed tax is not.

Finally, Congress could impose a tax on income to pay for national health care as it does with Medicare. But there are political reasons why it does not want to do this, so it would prefer to command A to enter into a contract with B at inflated prices, thereby subsidizing B and keeping the transaction off the books. The Court is not always receptive to Congress using unconstitutional means to avoid the political accountability of using its powers to accomplish its objectives. Especially when, if this is allowed, there is absolutely nothing Congress cannot command or forbid if it so chooses — provided only that it does not violate an enumerated right.

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