The Volokh Conspiracy

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted that as sufficient for starters [in an unpublished opinion, 2011 WL 5041456]. The present indictment says nothing about foreign commerce.

The Supreme Court has said little about the scope of the power. As a textual matter, the foreign commerce power does not allow Congress to simply regulate “foreign commerce,” but rather that part of it which is “with” the United States. It is not clear that the same kind of “foot-bone-is-connected to the ankle bone” games can be played with the Foreign Commerce clause as with the domestic on. Andrew Colangelo, in the leading article on the subject, argues that it requires a substantial U.S. nexus. Indeed, without that, the Constitution would have incorporated broad universal jurisdiction, without anyone knowing about it until now!

If the Foreign Commerce clause is enough here, it would mean several recent federal cases finding no universal jurisdiction over drug trafficking and piracy conspiracy case were wrongly decided: surely those things are linked to foreign commerce in the most general sense.

One can imagine a broader argument that the terrorist group designation is a regulation of foreign commerce, and the material support statute “necessary and proper” to that. And that would turn on the particular group and executive finding...

Some have suggested that the Foreign Commerce Clause should, on the contrary, be broader than the Interstate clause, because there is no background principle of federalism to protect. I see the point, but am hesitant for two reasons.

First, Congress is a government of limited and delegated powers. It can only have powers to regulate conduct anywhere in the world with no demostrable nexus if these were either preexisting powers of states, or somehow a natural emergent power of national sovereignty. I think neither is the case. The latter point can be seen from the fact that no other country exercises universal jurisdiction over this kind of thing...

Second, while Foreign Commerce authority is not concurrent with states, it is shared with other countries, whose existence and sovereign competency the Framers were aware of. Consider Hamilton’s discussion of the Foreign Commerce power (Camillus XXXVI):

Congress (to pursue still the case of regulating trade) may regulate, by law, our own trade and that which foreigners come to carry on with us; but they cannot regulate the trade which we may go to carry on in foreign countries; they can give to us no rights, no privileges, there. This must depend on the will and regulations of those countries; and, consequently, it is the province of the power of treaty to establish the rules of commercial intercourse between foreign nations and the United States. The
legislative may regulate our own trade, but treaty only can regulate the national trade between our own and another country

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.

One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard to have a limiting principle for the latter.

Under the logic of the government’s approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)

Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the U.S. in the past?

It is ironic that the liberal interpretation of the Commerce power would allow American exceptionalism and give Congress regulatory powers in excess of what would be allowed by international law. On the other hand, it is hard to doctrinally cabin disrespect for the domestic division of sovereignty from disrespect for the international division of sovereignty.

In Kiobel, the ATS case I have been blogging about, the Supreme Court has shown some skepticism about broad extraterritorial assertions of U.S. law (based proximately on statutory, not constitutional concerns, though in my forthcoming paper, I argue the Offenses Clause of the constitution and foreign commerce clause underpins the statutory issue. The justices might want to consider that a ruling for the government in the ACA case would open a whole world of extraterritorial legislation.

In Schecter Poultry, Justice Cardozo famously wrote:

Here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.

The point here is the “periphery” is not just internal; the periphery is also the world. That which obliterates the distinction between the local and national also tends to obliterate the distinction between global and national.

Now that Eugene has given me the electronic keys to this Conspiracy, I could not resist getting involved in the now-legendary discussion of the ACA...

There is a serious inconsistency between the government’s arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial duress on states’ ability to execute their policy preferences. Defending the mandate, the government says states are individually incompetent to regulate insurance, because the first state to adopt generous rules would be inundated with the sick, and forced to abandon its policy. This is a basic race to the bottom story and has been around in Commerce Clause cases since the New Deal.

Crucially, the argument takes financial realities as dispositive: states cannot realistically choose to experiment with medical insurance individually because it would be ruinous. The economic effects mean that states do not really have the power to choose individual regulatory regimes.

Yet turning to the Spending power, the government ask us to believe that states can realistically turn down federal medicaid funds, though it would be at least as ruinous if not more. Either the prospect of massive losses makes a states ability to pursue a certain course illusory or it does not. 

Incidentally, these two cases are not equal in that in that in the former, the ruinous consequences are a result of the market, in the latter a result of calculated federal efforts to make the offer unrefusable.

Most defenses of the constitutionality of the health insurance mandate rely on Congress’ powers under the Commerce Clause, an approach I criticized here. Some, however, also claim that Congress has the power to enact it under the Tax and Spending Clause (e.g. – Jack Balkin), which gives Congress the power to To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” There are two problems with this argument: the health care mandate is not a tax, and it does not promote the general welfare.

The so-called “tax” in the proposed health insurance mandate is really just a penalty for failing to comply with the requirement to purchase health insurance. It is even referred to as a “penalty” in some versions of the bill. If any regulatory measure with a monetary penalty for refusal to comply is considered a tax, then many of Congress’ other powers under Article I of the Constitution would be superfluous, since Congress could essentially regulate anything that fell within the subject matter of this clause simply by imposing money penalties on those who fail to comply, coupled with prison sentences for those who refuse to pay the money. For example, the Spending Clause gives Congress the power to tax in order to “provide for the common Defence.” Yet elsewhere in Article I Congress is also given the power to “raise and support armies” and to regulate the land and naval forces. Even more importantly, a financial penalty for failure to obey the law is not seen as a “tax” in ordinary language either today, or at the time of the Founding. The text and original meaning of the Constitution therefore cut against the view that the health insurance mandate is a tax.

Even if the mandate does count as a tax, it still can’t be justified under the Tax and Spending Clause because it does not pay the national debt, provide for the common defense, or promote the general welfare of the nation. It’s pretty obvious that the mandate doesn’t fall within the first two of these categories. It can only be defended by arguing that it promotes the “general Welfare.” In cases such as South Dakota v. Dole, the Supreme Court has defined “general welfare” as more or less anything Congress says it means. This is badly mistaken for several reasons. The most important problem is that it renders the rest of the Spending Clause itself superfluous. If the General Welfare Clause gives Congress the power to tax and spend for any purposes it likes, surely that includes the power to do so for purposes of providing for “the common defence” and paying the national debt. After all, Congress could surely have a plausible belief that paying the national debt and defense spending promote the general welfare in some sense. Yet these powers are separately enumerated, which implies that the General Welfare Clause must not be interpreted so broadly as to make Congress’ other powers redundant. As James Madison put it in Federalist 41, the broad interpretation of the General Welfare Clause also makes much of the rest of Article I redundant, as well:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

If the General Welfare Clause doesn’t give Congress the power to spend money on whatever purposes it thinks might be beneficial, what does it mean? In my view, James Madison was roughly correct to argue that the Clause simply gives Congress the power to spend money for purposes of implementing its other powers under Article I (the rest of Article I merely gives Congress the power to promote those objectives through regulatory measures, but not through spending). For a modern defense of that view, see this article by John Eastman. In addition, I think it’s also plausible to argue that the General Welfare Clause gives Congress the power to spend for unenumerated purposes that really do provide universal or nearly universal benefits. The example I like to use when I teach constitutional law is asteroid defense (which may not be covered by the “common defense” section of the Spending Clause, because that provision may refer only to protection against enemies, as opposed to natural phenomena). Whatever its other virtues, the health care mandate certainly doesn’t qualify on this ground, since it clearly imposes net harms on many people, such as those who would prefer not to purchase health insurance, those who don’t wish to purchase coverage as broad as the mandate requires, and others.

Orin’s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that you can always find at least one person to say that. But it’s not true that there are no areas of overwhelming consensus, including consensus on politically controversial issues. Expert consensus does not require absolute unanimity, merely an overwhelming preponderance of professional opinion that cuts across ideological lines. For example, there are virtually no serious legal scholars who endorse claims that the income tax is unconstitutional, despite its popularity among some right-wing political activists and others (e.g. – Wesley Snipes). Likewise, most liberal constitutional law legal scholars disagree with claims that the Iraq War was unconstitutional, even though most of them believe the war was immoral or unwise. A less important but still interesting example: a wide range of con law scholars across the political spectrum support the view that Congress has the power to force federal courts to let their oral arguments be televised, despite the vehement opposition of the Supreme Court justices. There are other areas where the consensus is less overwhelming, but still cuts broadly across ideological lines. For example, even many conservative legal scholars such as Jack Goldsmith and my frequent coauthor John McGinnis, rejected the Bush Administration’s claims to virtually unlimited wartime executive power, as did nearly all liberal and libertarian ones.

The health care mandate doesn’t fall within either of these categories. The overwhelming majority of liberal scholars believe that it is constitutional, while the overwhelming majority of conservative and libertarian ones (especially those of us who study federalism or the Commerce Clause as our main focus) believe otherwise. Therefore, neither side can claim there is a cross-ideological consensus of experts supporting its position. This is noteworthy for several reasons, including the fact that there are important constitutional law issues where a broad expert consensus does exist.

UPDATE: The original version of this post misidentified Will Smith as the actor who claimed that the income tax is unconstitutional. In reality, it was Wesley Snipes. I apologize for the error.

In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal blogosphere. For example, Think Progress denounces Republican Senators Ensign and DeMint for citing only “right-wing think tanks” in support of their claims that the mandate is unconstitutional, and chides them for supposedly being unable to cite “a single judge, justice or reputable constitutional scholar who believes that health reform is unconstitutional.”

There certainly are prominent constitutional law scholars who agree with Baucus. But the claim that there is an overwhelming expert consensus on the subject is simply false. As co-blogger Jonathan Adler points out, Baucus mistakenly cited him as a scholar who agrees with the Democrats’ conclusions even though he actually believes that the mandate is not constitutional. The “right-wing think tank” study cited by Ensign and DeMint was actually coauthored by co-blogger Randy Barnett, one of the nation’s most prominent constitutional law scholars, and an expert on the original meaning of the Commerce Clause (the provision usually cited as authorizing Congress to impose the mandate). Richard Epstein of NYU and the University of Chicago is another prominent legal scholar (one of the ten most cited in the country) who believes that the mandate is unconstitutional.

I certainly wouldn’t put myself on the same plane as Jonathan, Randy, or Richard Epstein. But I’m a professional constitutional law academic, federalism and the Commerce Clause are among my areas of expertise, and I think the mandate is unconstitutional too.

It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center. There are many controversial constitutional issues that split experts along ideological lines. In such cases, it is misleading to claim that there is an expert consensus merely because there are more experts on one side of a broader ideological divide than the other. Moreover, it’s worth noting that most of those left of center con law scholars who believe that the mandate is constitutional hold that view in large part because they believe that there are essentially no limits whatsoever to Congress’ ability to use its power to regulate “Commerce . . . among the several states” to control anything that has even a remote potential affect on commercial activity. If you believe that Congressional power is basically unlimited (except by constitutional individual rights), then the mandate becomes an easy case. That view, however, is seriously at odds with the text and original meaning of the Commerce Clause, for reasons that I discussed in my earlier post on the subject of the constitutionality of the individual mandate, and in this article.

UPDATE: I have edited the title of this post to make it clearer.