In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs’ case must fail as a “facial” challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future “as-applied” challenges, which contend merely that the law is unconstitutional in certain specific cases:
For now, whatever else may be said about plaintiffs’ activity/inactivity theory of commerce power, they have not shown that the individual mandate exceeds that power in all of its applications. Congress may apply the mandate in at least four settings: (1) to individuals who already have purchased insurance voluntarily and who want to maintain coverage, but who will be required to obtain more insurance in order to comply with the minimum-essential-coverage requirement; (2) to individuals who voluntarily obtained coverage but do not wish to be forced (at some indeterminate point in the future) to maintain it; (3) to individuals who live in States that already require them to obtain insurance and who may have to obtain more coverage to comply with the mandate or abide by other requirements of the Affordable Care Act; and (4) to individuals under 30, no matter where they live and no matter whether they have purchased health care before,who may satisfy the law by obtaining only catastrophic-care coverage. The valid application of the law to these groups of people suffices to uphold the law against this facial challenge.
While future challenges to the law have hills to climb, nothing about this view of the case precludes individuals from bringing as-applied challenges to the mandate as the relevant agencies implement it.....
Sutton appears to be arguing that the plaintiffs’ claim that the mandate is an unconstitutional regulation of inactivity does not apply to the first three of the above situations because people who fall into these categories have already engaged in activity in the health insurance market. Therefore, the mandate could be imposed on them even under the plaintiffs’ reasoning.
Sutton’s analysis rests on a misinterpretation of the plaintiffs’ argument. The key point is not that a given plaintiff hasn’t engaged in economic activity, but that the regulation imposed by Congress does not require any such activity as a prerequisite for covering them. The fact that some of the individuals covered by the mandate could be regulated by a more narrowly drawn law (e.g. – one that covered only people who had already purchased health insurance) does not mean that the present mandate is constitutional as applied to them. Their having previously engaged in economic activity that Congress could regulate is purely coincidental. It is not the reason why the mandate applies to them, under the terms of the law itself.
By Judge Sutton’s reasoning, the Supreme Court should have rejected the facial challenges brought in United States v. Lopez and United States v. Morrison. In Lopez, the Court struck down a federal law banning possession of guns in a school zone as going beyond Congress’ authority under the Commerce Clause. But surely some of the people whom that law could have been applied to were using guns that were purchased in interstate commerce or had brought the guns into a school zone in order to facilitate an interstate economic transaction (e.g. – bringing in a gun in order to protect their sale of illegal drugs imported from abroad). In Morrison, the Court invalidated a federal law creating a civil penalty for gender-motivated crimes of violence. But some of the people covered by the law might have committed their crimes on interstate trains or buses or committed them for the purpose of interfering with women engaged in interstate economic transactions. By Judge Sutton’s reasoning, Lopez and Morrison struck down laws that did not ” exceed” Congress’ power “in all of [their] applications.”
The Court ruled the way it did in Morrison and Lopez because the challenged laws, as actually written, did not require any kind of connection to interstate commerce as a legal prerequisite for their application. The fact that some potential defendants happened to have such a connection was legally irrelevant. The same reasoning applies to the individual mandate. Judge Sutton’s approach, by contrast, would rule out virtually all facial challenges to any law, so long as there is even one conceivable situation where the law leads to a prosecution that could have been constitutional with a more narrowly drawn statute.
UPDATE: To illustrate my point a bit further, consider a hypothetical statute giving police the power to break into any house any time they want. In my view, that statute would be facially invalid. By contrast, Judge Sutton would have to uphold it against a facial challenge because some of the searches allowed by the statute would involve cases where the search was “reasonable” under the Fourth Amendment (e.g. because the authorities had probable cause to believe that a crime had recently been committed on the premises).
UPDATE #2: It is not entirely clear why Judge Sutton thinks that the plaintiffs’ argument does not apply to his fourth category, people under the age of 30 who are only required to purchase “catastrophic” health insurance coverage under the law. Not having catastrophic coverage is no more “economic activity” than is not having a broader insurance policy. If the plaintiffs’ theory applies to the latter case, it applies to the former as well. Judge Sutton seems to think that the two are different because congressional legislation requires some providers to provide emergency health care treatment for free. But it is not clear why this distinction should have any constitutional significance. If Congress required some supermarkets to provide free broccoli, would that justify a broccoli purchase mandate?
UPDATE #3: Co-blogger Jonathan Adler makes some related points here. As Jonathan notes, Alfonso Lopez, the defendant in United States v. Lopez was in fact engaged in an economic transaction (he was paid to deliver the gun in question to a gang member).