The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus

Yesterday, on the Senate floor, Senator Max Baucus quoted my August 22 VC post on the constitutionality of an individual mandate.  Specifically, he quoted the following passage:

In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.

This quote was part of a longer speech in which Senator Baucus sought to show that many “prominent legal scholars” believe that “Congress has the constitutional authority to impose a requirement on individuals to maintain health coverage.”

While Senator Baucus quoted me correctly, I think he left out some important context and, as a consequence, may have created a mistaken impression of my views.

My August 22 post was a comment on an op-ed by David Rivkin and Lee Casey.  In response to their claim that an individual mandate was unconstitutional under current law, I argued:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme.

What I did not mention in that post, but have written repeatedly elsewhere, is that I believe that some of these “recent commerce clause cases,” most notably Gonzales v. Raich, were wrongly decided, and adopted an excessively expansive view of federal power under the Commerce and Necessary & Proper Clauses (see, e.g., here and here). Under these cases, I believe that it is difficult to argue that an individual mandate exceeds congressional authority. Under a more constrained reading of the Commerce Clause, however, I don’t think the argument is so difficult.

In my view, the biggest problem with the argument for the constitutionality of an individual mandate is that it is an argument without limit.  Basically, the argument is that if Congress can regulate economic activity X, then it can also mandate that each and every American engage in economic activity X.  If this is true for health care, there is no reason why it is not also true for Christmas trees, savings bonds, or GM cars.  In short, Congress could mandate universal participation in any economic activity and mandate the purchase of any product or service it chooses, so long as it does so as part of a broader regulatory scheme.

While some of the language in the majority opinion and Justice Scalia’s concurrence in Raich implies Congress has such power, this approach would create a commerce power without limit, an outcome which both Lopez and Morrison said was incompatible with the concept of enumerated powers. so to embrace this view, as I argued in this article, is to eviscerate their holdings.  As I believe Lopez and Morrison are more consistent with the text of the Commerce Clause and the principles of enumerated powers, I would prefer that the Supreme Court uphold these decisions and overturn or severely limit Gonzales v. Raich, Wickard v. Filburn, and a few others.

So, while Senator Baucus correctly quoted my belief that an individual mandate is likely constitutional under existing precedent, he omitted my belief that existing precedent is unduly expansive.  So while I would expect a lower court judge to uphold the mandate as against a constitutional challenge, I do not think the Supreme Court is required to do so.  Indeed, I believe the Court could distinguish Raich, and hold the mandate out of bounds.  (For an argument why courts should, and might, do so, see here.)

I should also note that I do not believe that members of Congress should base their decisions on whether to support proposed legislation based upon their prediction of how federal courts are likely to rule.  Every member of Congress takes an oath to uphold the Constitution.  I am old fashioned enough to believe this oath obligates each and every member of Congress to consider the constitutionality of proposed legislation for themselves, and refuse to vote in favor of legislation they conclude is out-of-bounds, even if they think the legislation would be a good idea. So Senator Baucus should spend less time quoting the assessment of folks like me about what current precedent means for proposed legislation, and more time explaining why he finds this and other legislative proposals to be consistent with the text, structure, and history of the Constitution he took an oath to uphold.