The Individual Mandate and the Presumption of Constitutionality

One of the emerging criticisms of the Sixth Circuit opinion upholding the individual mandate — and especially Judge Sutton’s separate opinion — is that the Sixth Circuit erred because the individual mandate should be presumed unconstitutional. Unless Supreme Court precedent is so clear that it compels a holding that the statute is constitutional, the argument runs, the mandate should be struck down. For example, Cato’s Ilya Shapiro writes:

Under a document establishing a government of enumerated and therefore limited powers, the burden is on that government to prove that it has the power to do something, not on the plaintiffs to disprove that power. Never has the Supreme Court ratified the federal power to force someone to buy a product in the marketplace under the guise of regulating commerce. Indeed, never, not even during the height of the New Deal, had Congress asserted such a power—until the health insurance mandate.

If I understand him correctly, our own Ilya Somin appears to be making a similar point with the following criticism:

The Sixth Circuit ruling would be defensible if it were compelled by Supreme Court precedent. However, both Martin and Sutton admit that the Supreme Court has never previously ruled on a case involving a mandate of this type, and has also never previously addressed the issue of whether the Commerce Clause authorizes regulation of inactivity. Therefore, it’s hard to defend their reasoning on the grounds that it was somehow compelled by precedent.

More colorfully, commenter WolfWalker writes in response to me:

There’s simply no way that the mandate can be permitted under the spirit of the Constitution. This endless hairsplitting about “is it really most sincerely unconstitutional, or can we find a way to let it stand” is a corruption of the entire spirit of the Constitution, and the LIMITED FEDERAL GOVERNMENT that it was intended to create. The United States federal government is not a Windows system where anything that is not expressly forbidden is allowed. It’s a Unix system, where any action that is not expressly permitted is forbidden.

I’ve heard others make similar arguments, both previously and in some of today’s threads. The mandate is so exceptional, the argument goes, that those seeking to uphold its constitutionality must overcome a steep burden of proof.

It’s worth noting, however, that the law is to the contrary. The United States Supreme Court has long imposed a presumption of constitutionality on judicial review of statutes, not a presumption of unconstitutionality. See, e.g, O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251, 257-58 (1931) (citing cases). Further, the Court has described the presumption of constitutionality as “strong” when courts review an act of Congress. See, e.g., United States v. Watson, 423 U.S. 411, 416 (1976). As a result, the burden of proof here is on the plaintiffs, not the defendants.

I realize that the presumption of constitutionality is unpopular among many people who happen to think that the mandate is unconstitutional under existing precedents. Randy Barnett has argued that the presumption of constitutionality is wrong, for example, and I believe Ilya Somin agrees. But lower court judges like those on the Sixth Circuit don’t have the authority to ignore or overturn the long-standing Supreme Court caselaw that establishes the presumption of constitutionality. Obviously this doesn’t settle the constitutionality of the mandate; it only addresses who has the burden of proof. But I think it’s a helpful point to keep in mind, as at least some of the criticism of the Sixth Circuit opinion appears to assume the contrary presumption.