The Volokh Conspiracy

Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.

In this recent Atlantic article, Professor Larry Lessig argues that, if the Supreme Court strikes down the individual mandate, it could only be the result of politics, given its previous decisions rejecting “liberal” challenges to congressional legislation:

The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. Some of these have been for liberal causes, some for conservative. I was lead counsel in a case that asked the Court to apply its newly announced will to enforce the limits on enumerated powers in the context of the copyright clause — viewed by many as a “liberal cause.” The Court said no, twice. The same with federal regulation of medical marijuana, which, the (said to be liberal) 9th Circuit had ruled, violated the limits on Congress’s power. The Supreme Court — including Scalia — said it didn’t.

So with these liberal cases, limits were not enforced. But when the cause is conservative, the willingness to limit Congress’ power comes alive. The Court has struck laws regulating guns — twice. It has struck a law that regulated violence against women. And if Obamacare falls, it will have struck down the most important social legislation advanced by the Democratic Party in a generation.

With that score sheet, I fear the cynics win.

I don’t doubt that the Supreme Court is often influenced by political factors, including in its federalism cases. But Lessig’s argument is greatly overstated. He ignores the fact that many of the votes upholding federal laws against “liberal” challenges in the medical marijuana and copyright cases actually came from the Court’s liberal justices. In Gonzales v. Raich, a decision I have been very critical of, four of the six votes in the majority came from the liberal justices. The five conservatives actually voted 3-2 to strike down the law which allowed the federal government to ban the possession of medical marijuana that had never crossed state lines or been sold in any market. If it were up to the Court’s conservatives, the “liberal” challenge to the medical marijuana ban would have succeeded.

The underlying dynamic here is that the Court’s liberal wing has consistently opposed virtually any limits on Congress’ powers under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment over the last twenty years. As a result, such limits are only enforced on the rare occasions when all five conservative justices are willing to do so. We can and should criticize the conservatives for enforcing those limits unevenly and for developing a federalism jurisprudence that is far from a model of clarity. But the liberal justices also deserve considerable blame for essentially treating the Commerce Clause as a blank check for unconstrained Congressional power.

In Eldred v. Ashcroft, the first of the copyright cases Lessig complains about, the majority opinion was written by liberal Justice Ruth Bader Ginsburg, though two of the other three liberal justices did dissent. In Golan v. Holder, a recent extension of Eldred, there were only two dissenters – one of them the conservative justice Samuel Alito.

I actually doubt that the copyright cases are fairly characterized as a liberal vs. conservative issue. Many liberal Democratic members of Congress voted for the broad extensions of copyright that these lawsuits challenged (as also did many Republicans). Among their critics were many libertarians and pro-free market conservatives. This is an issue that splits both liberals and conservatives internally. Libertarians are internally divided on intellectual property issues as well, though my impression is that more of them oppose broad extensions of copyright than support it.

Finally, Lessig’s argument that Justice Scalia cannot vote to uphold the individual mandate without contradicting his concurring opinion in Raich ignores the fact that that opinion addresses only the issue of what qualifies as “necessary” under the Necessary and Proper Clause, while the main argument against the mandate turns on the meaning of “proper.” This is the point of the amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars, which explains why the mandate is improper even if it is “necessary.” As the brief explains (pp. 13-14, 28-29), Scalia has written several opinions emphasizing that necessity and propriety are separate and distinct requirements, both of which must be met in order for federal legislation to be authorized by the Necessary and Proper Clause. He made that point in the Raich concurrence itself. In the oral argument on the individual mandate case, Scalia emphasized the same issue in his questioning of Solicitor General Donald Verrilli. For some fifteen years now, Scalia has focused on the issue of propriety more than any other member of the Court.

I am no fan of Scalia’s Raich concurrence. But he could easily write an opinion striking down the mandate without contradicting anything he said in that earlier case.

NOTE: The arguments of this post overlap slightly with co-blogger Randy Barnett’s earlier critique of Lessig’s article. I have chosen to leave the overlap in place rather than cut out important logical links in my own argument.

In my previous post, I argued that the broad interpretation of the Commerce Clause advocated by the government would have the absurd result, when applied to the parallel foreign commerce clause, of allowing Congress to impose mandates on foreigners with no prior contacts with the U.S.

Many commentators fought the hypothetical, saying such a law was stupid, unenforceable, and unlikely, so not a good proof of anything. Two responses. First, one man’s idiotic and unenforceable is another man’s Patient Protection and Affordable Care Act, which aside from its merits is itself unlikely (once in a few centuries), and hard to enforce (waivers). Second, arguments from absurd consequences are valid even if the hypothetical law would be ill-advised; indeed, since presumably no one wants absurd consequences, such arguments inherently assume the possibility of legislative error.

A student of mine emailed me to raise a variant hypothetical much closer to home: Can Congress mandate Indians to purchase insurance? They “inevitably” leave their territory at some point in their lives (at least as “inevitably” as the healthy uninsured getting sick), so the arguments would be exactly the same as for the mandate under the Interstate Clause. So why have an Indian Commerce Clause at all? Factual query: does the ACA apply to Indians living on tribal land? (I invite the student to self-identify in the comments.)

Some suggested that Interstate Commerce is regulated “among” the states, whereas foreign and Indian commerce is only “with” other countries or tribes. This could suggest the interstate power is broader: commerce just “among” other nations seems explicitly excluded. But if “among” the states means not actually among but affecting things that are “among,” wouldn’t the same be true of “with”? Again, I think the best reading of the commerce clause is that the interstate power is broader. But the ACA makes this distinction hard to sustain, and that is a criticism of the mandate not the commerce clause text.

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

The CNN website has just posted a column I wrote on the individual mandate case. Here’s an excerpt:

This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan’s requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is unconstitutional. To do otherwise would give Congress almost unlimited power....

If Congress could use [the commerce] clause to regulate mere failure to buy a product on the grounds that such inaction has an economic effect, there would be no structural limits to its power. Any decision to do anything is necessarily a decision not to do something else that might have an economic effect. If I spend an hour sleeping, I thereby choose not to spend it working or shopping. As the lower court decision in this case explained, the government’s position “amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.”

Earlier today, UC Davis lawprof Vikram Amar and I were on a KQED NPR radio program discussing the individual mandate litigation. Amar believes that the Court should uphold the mandate whereas I, of course, do not. The audio is available here:

One thing I notice about these radio exchanges is that there is a tremendous advantage to whoever gets to respond to a question last. Both Amar and I were more effective when we got to respond after the other, in large part because that position allows you to rebut whatever the other person said, as well as make your own points. That said, I think we at least did a fairly good job of laying out some of the major arguments on both sides.

That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on their plantations, and that marijuana use was neither illegal nor socially stigmatized in the late 18th and early 19th centuries.

Perhaps more importantly, few if any of the Founders would have thought that the federal government had the constitutional authority to ban marijuana growing. As I discuss in this article, as late as the early twentieth century, advocates of Prohibition had to enact a constitutional amendment to forbid the sale of alcoholic beverages, because the dominant view at the time held that Congress did not already have the power to do this. If they are serious about enforcing constitutional limits on federal power, Gingrich and other conservatives cannot continue to ignore the ways in which the War on Drugs has severely undermined those limits, most notably in Gonzales v. Raich, the Supreme Court’s most expansive interpretation of federal authority so far.

I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say.

Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit’s conclusion that there are no limits to Congress’ power to impose mandates under the Commerce Clause. Both of these justices have emphasized the need to enforce limits on the scope of federal power. If the Court does uphold the individual mandate, it will be on the basis of one or more of the various arguments claiming that health care is a special case.

Here are two additional points that go a little beyond Randy’s analysis.

First, Judge Silberman’s majority opinion is wrong to suggest that a long line of Supreme Court decisions that defined the scope of Congress’ Commerce Clause power in terms of “activity” or “economic” activity “were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question” of whether economic activity could be regulated. Several of those decisions clearly use the term “activity” as part of a doctrinal test, not merely a description of facts. In Gonzales v. Raich, the Court noted that the statutes invalidated in Lopez and Morrison were ruled unconstitutional because they “did not regulate any economic activity,” whereas the law in Raich was sustained because it did regulate “quintessentially economic” activity. That certainly looks like more than just “description” to me. Even more importantly, in several cases the Supreme Court could have saved itself a lot of analytical trouble if it could uphold Commerce Clause statutes simply by claiming that they regulate inactivity with economic effects. For example, In Katzenbach v. McClung, the Court ruled that Congress could forbid racial discrimination by a restaurant that served almost exclusively local customers on the somewhat circuitous basis that the restaurant purchased some of its food supplies out of state, and its discrimination against African-Americans affected the volume of those purchases. If inactivity that affects interstate commerce were enough, the Court could have avoided these gymnastics and simply said that McClung’s restaurant had had an impact on interstate commerce because he could instead have established some other business that was more connected to interstate commerce than the restaurant itself was.

Second, it is interesting that Judge Harry Edwards, in his concurring opinion, seems uncomfortable with Judge Silberman’s conclusion that Congress has virtually unlimited power to impose mandates. He emphasizes that “Congress’s authority to legislate under the Commerce Clause is not without limits. If nothing else, there are boundaries that emanate from the Necessary and Proper Clause... which serve as principled limitations on Congress’s authority under the Commerce Clause.”

Edwards is right to stress the need for limits on the Commerce power. But it is somewhat strange to look to the Necessary and Proper Clause for them. After all, the whole point of the Necessary and Proper Clause is to give Congress additional power that goes beyond what it has under its other enumerated powers by themselves. Edwards claims that his view is supported by Justice Scalia’s concurring opinion in Raich. But Scalia’s key argument in that case was precisely that the Necessary and Proper Clause could be used to reach activity that Congress could not regulate under “the Commerce Clause alone.” Unlike the majority opinion, Scalia did not believe that the Commerce Clause by itself gave Congress the power to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market.

UPDATE: In criticizing Judge Silberman’s interpretation of the precedents on “economic activity,” I don’t mean to suggest that those cases definitively ruled that Congress cannot use the Commerce power to regulate inactivity. They did not do that. At the same time, “activity” did define the limit of what the Court ruled that Congress could regulate in those cases. Permitting regulation of inactivity would require a lower court to go farther than the Supreme Court has gone.

UPDATE #2: I have revised this post to correct a few grammatical and phrasing errors.

I thought readers might be interested in the key passages from the DC Circuit’s majority opinion, authored by Judge Silberman, upholding the individual mandate under the Commerce Clause:

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

The Framers, in using the term “commerce among the states,” obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. See Lopez, 514 U.S. at 553-61; id. at 568-75 (Kennedy, J., concurring). Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. See United States v. Morrison, 529 U.S. 598, 610, 615-19 (2000); Lopez, 514 U.S. at 558-61, 566-67. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if only decisions whether or not to purchase health care insurance or to seek medical care–that does substantially affect interstate commerce.

To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word “activity” to describe behavior that was either regarded as within or without Congress’s authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether “inactivity” can also be regulated. See Florida, 648 F.3d at 1286. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .

Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. Thomas More, 651 F.3d at 560-61 (Sutton, J., concurring). The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable. See Wickard, 317 U.S. at 119-20; see also Lopez, 514 U.S. at 569-71 (Kennedy, J., concurring).

Appellants have sought to avoid this logic by asserting that even if one could be obliged to buy insurance when one sought medical care, one cannot be obliged to keep it. Although that argument, as we have noted, avoids the facial challenge objection, it strikes us as rather unpersuasive on the merits. Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services–as rather useless as that would be–is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.

Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickard doesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. Florida, 648 F.3d at 1285-88. Moreover, the novelty cuts another way. We are obliged–and this might well be our most important consideration–to presume that acts of Congress are constitutional. Morrison, 529 U.S. at 607. Appellants have not made a clear showing to the contrary.

Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.

Judge Silberman’s view is pretty much what I’ve been arguing since the mandate challenges were first filed, so it’s no surprise that I find this a persuasive reading of existing Supreme Court precedent. Of course, the Supreme Court is highly likely to review this issue soon, and the Justices are not bound by the implications of their prior precedents — or even the precedents themselves.

At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall):

The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. Many people are unfamiliar with the relevant Commerce Clause cases, but everyone seems to know about the broccoli hypothetical.

The hypothetical on the other side of this litigation, though, is just as powerful. Suppose that a dangerous epidemic breaks out that reduces interstate commerce by curtailing travel and other interactions for fear of contagion. A private company develops an effective vaccine that many people refuse to buy. Is Congress prohibited from ordering everyone in the country to buy the vaccine under the proposed activity/inactivity distinction?

It so happens that I address the very issue Gerard raises in a forthcoming article on slippery slopes and the individual mandate. I have two answers to his question. First, Congress can still pass a vaccination requirement that applies to everyone who crosses state lines. Crossing state lines is clearly an “activity” and an interstate activity to boot. Second, as a practical matter, state governments would have very strong political incentives to enact vaccination laws in the face of a “dangerous epidemic.”

Gerard anticipates my second point, and finds it unsatisfying because it “sounds a lot like ‘This is a non-issue because Congress will never order you to buy broccoli.’ Either both responses are valid or neither is. One can’t be adequate and the other not.” Not so. The claim that a slippery slope is politically infeasible may be right in one scenario and wrong in the other because some policies are more politically viable than others. As I explain in this post, Congress has strong incentives to enact purchase mandates that benefit influential interest groups. The insurance mandate was itself adopted in part because of backing by the health insurance industry. By contrast, state governments are unlikely to sit on their heels in the face of a raging epidemic. Any state that does so is likely to lose business, and its politicians are likely to suffer retribution at the polls. Even the most ignorant voters tend to notice a rampaging epidemic that the government has failed to control.

Obviously, state governments could do a poor job of addressing an epidemic even in spite of good incentives. But the same is true of Congress.

UPDATE: I have made a few, mostly stylistic, changes in this post.

UPDATE #2: It’s a fair point to suggest, as some commenters do, that under my logic, Congress could enact the individual insurance mandate by restricting it to people who cross state lines. I think that would be permissible under current Commerce Clause doctrine, even if it might not be under the text and original meaning. However, many people could still evade the mandate by avoiding interstate travel. Not everyone crosses state lines regularly. Moreover, a health insurance mandate tied to travel would seem weird to many people, which in turn would reduce its political feasibility (not so with a vaccination mandate tied to travel, since it’s easy to see that part of the purpose of such a mandate is to stop the spread of an epidemic across state lines). More generally, requiring mandates to be tied to “economic activity” of some sort reduces the risk of harmful mandates because mandates with “tie-ins” tend to disincentivize whatever activity they are tied to. The more onerous the mandate, the greater the disincentive. For example, a mandate tied to employment will tend to increase unemployment. Congress will not always be willing to pay that price.

That’s the question posed today over at Scotusblog. It’s the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others.

My answer to what the Supreme Court should do is:

The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”
 
Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.

The rationale for the above can be found in my articles Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online (forthcoming 2011)(with Gary Lawson); “Health Laws of Every Description”: John Marshall’s Ruling on a Federal Health Care Law, 12 Engage 49 (June 2011) (with Robert G. Natelson); Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010) (with Natelson); and Health insurance is not ‘commerce’: A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned, National Law Journal, March 28, 2011 (with Natelson) (available on Lexix/Nexis).

Since Scotusblog is trying to get people to comment on its own website, I’m not opening comments on this post, and I encourage you to share you thoughts over at Scotusblug.

Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding it would give Congress unlimited authority to enact other mandates. My own view is that upholding the mandate would indeed lead to an unconstrained slippery slope of this kind, as I explained here. On the important severability question, Connor argues that the preexisting conditions coverage requirement cannot be severed from the mandate, but that the rest of the bill can be.

We now have three district courts and one court of appeals that have voted to strike down the mandate, and three district courts and one court of appeals that have voted to uphold it. Of the twelve federal judges who have considered the question, six have gone one way and six the other, with ten of the twelve (including Judge Connor) splitting along partisan and ideological lines.

It is now more clear than ever that there is no expert consensus on this subject, and that this is not a frivolous case that only ignorant or misguided extremists could possibly support.

UPDATE: The court in question is actually the Middle District of Pennsylvania, not the Eastern District, as I originally stated in the post. I apologize for the error, which has now been corrected.

Rob Natelson explains it all in his latest blog post. Short answer: if the purpose of the tax is raising revenue (e.g., the Stamp Act), it’s a tax. If the purpose is the regulation of commerce (e.g., a prohibitive tariff on imported French clothing; a shipping tax dedicated to paying for harbor improvements), then it’s not a “tax” in the the constitutional sense. Rather, it is a regulation of commerce.

The American colonists believed that Parliament had full authority to regulate external commerce, such as by imposing protectionist tariffs. The colonists also believed that Parliament had no authority to impose domestic taxes in the colonies (such as the Stamp Act). The colonists had a very firm sense of the distinction, and ended up going to war over Parliament’s refusal to respect that distinction. Because the Obamacare mandate is designed purely to control behavior, and not to raise revenue (even if it, like a protectionist tariff on French clothing does ultimately raise a little revenue), the Obamacare mandate is a type of commerce regulation, and not a tax in the constitutional sense. That, at least, is what the original meaning tells us.

Of course whether the individual mandate actually qualifies as a regulation of “commerce...among the several States” is a separate issue. The original meaning question for the mandate’s penalty is a commerce issue, not a tax issue.

My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject.

RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be interested, it has lots of good commentary by scholars and public officials on a variety of regulatory issues.