Ginsburg is Right on the Commerce Clause, but for the Wrong Reasons

As perhaps the only law professor in the country who teaches/studies health law who has not published something on the ACA case, I’ve decided to contribute my two cents today.

In today’s opinions, on the Commerce Clause question, the Justices tangled primarily over whether it matters if Congress regulates “activity” that affects interstate commerce – such as growing wheat – or an “inactivity,” such as not purchasing insurance. The five more conservative Justices found that this distinction matters because the power to “regulate” presumes the pre-existence of some activity, and because, if the government could require citizens doing nothing but “breathing in and out” to purchase a product, there would be no logical stopping point. Invoking what Justice Ginsburg called “the broccoli horrible,” the conservatives warned that such a broad reading of the Commerce Clause would enable the government to require that every American buy vegetables.

The four more liberal Justices disagreed, of course, but in doing so they accepted the conservatives’ framing of the relevant issue and basically contended that the mandate regulates a type of “activity.” Justice Ginsburg, for the four liberals, contended that there is no defensible difference between activity and inactivity, claiming that individuals subject to the mandate are engaged in the activity of “self-insuring.” In any event, she claimed, everyone “actively” participates in the health care market sooner or later, because almost everyone (note the slight fudge) needs a doctor sooner or later.

The conservatives arguably have the better of the argument on the point of primary contention. That is, there is a difference between activity and inactivity that raises concerns about individual liberty. But they come to the wrong conclusion on the individual mandate for the very simple reason that the individual liberty concern is not relevant in the context of interpreting the Commerce Clause. The Commerce Clause does not exist to draw a line between government authority and individual freedom like, for example, the First Amendment does. The Commerce Clause exists to determine where the proper scope of federal power ends and state power begins.

All parties agree that the state government can require an individual who is doing nothing more than “breathing in and out” to enter the market and buy a health insurance policy. Massachusetts has done just this! The relevant issue for Commerce Clause purposes is whether the question of whether or not to require people who are just sitting around “breathing in and out” to go out and buy health insurance can properly be decided by the federal government or falls within the exclusive purview of state government.  Thus, the proper question – and the one that has always been asked before by the Supreme Court in Commerce Clause disputes – is how much an individual’s decision to buy or not buy insurance affects interstate commerce, such that a national solution to the problem is superior to individual state solutions. Given the interstate nature of the health care and health insurance industries, and the ease with which sick people could move to states with mandates and healthy people could move to states without mandates, the answer is that this is an appropriate context for federal as opposed to state decision making. This is, or should be, the end of the Commerce Clause analysis.

I am a bit unsettled by the notion that my government could require me to buy broccoli. But if there is a constitutional bar to such intrusive legislation on the part of the government – federal or state – the source of the restriction should have to be located in the Due Process Clause or some other part of the Constitution that has as its function establishing the line between government power and individual liberty. If none of those provisions are sufficient to protect me, I’ll have to hope my fellow citizens don’t elect a majority of militant vegetarians.