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  • The Improper Individual Mandate

    Posted by David McFadden on June 26th, 2012 (All posts by )

    Liberals who are pessimistic about the prospects in the Supreme Court this week for the Affordable (or is it Abominable?) Care Act, known as “ACA,” have been preparing the ground by publicizing surveys measuring the unpopularity of the Court. Liberals who are optimistic, such as former speaker Nancy Pelosi, predict that ACA will be upheld 6-3.

    The 6-3 breakdown comes from the result in Gonzales v. Raich, 545 U.S. 1 (2005), in which the Supreme Court held that prohibiting the cultivation of marijuana for personal medicinal use was within Congress’s powers under the Interstate Commerce Clause. To the dismay of many conservatives, Justice Antonin Scalia concurred with the majority. His concurring opinion shows how to apply the Commerce Clause to something as far from interstate commerce as ACA’s individual mandate.

    And the individual mandate is very far from interstate commerce. An individual is not engaging in interstate commerce merely by refraining from buying health insurance. He is not engaging in commerce. He is not engaging in anything. That puts the individual mandate beyond Congress’s commerce power but not necessarily beyond Congress’s powers.

    The Supreme Court has said that Congress has the power to regulate the channels and instrumentalities of interstate commerce as well as activities that substantially affect interstate commerce. Justice Scalia said in his concurring opinion in Raich that the power to regulate activities that substantially affect interstate commerce does not come from the Commerce Clause alone but from the Commerce Clause plus the Necessary and Proper Clause. The Necessary and Proper Clause has extended the Commerce Clause pretty far. Scalia wrote that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

    As disturbingly vast as that power might be, the Supreme Court would have to extend it even further to reach non-economic local inactivity. That extension may or may not be “necessary” to make ACA effective, but is it “proper”? At oral argument Justice Scalia posed that question to Solicitor General Donald Verrilli:

    Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the states, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

    The solicitor general (who didn’t do such a bad job overall) replied that the individual mandate does not invade the sphere of state government but, despite several follow-up questions, did not answer the question of whether the individual mandate improperly invades the sphere of individuals. Justice Kennedy pressed further, saying that “to tell the individual citizen that it must act . . . changes the relationship of the federal government to the individual in a very fundamental way.” General Verilli replied that the individual mandate is predicated on the individual’s unavoidable participation in the health care market.

    That appeared to be enough for Justice Breyer, who in the course of rambling questions in search of a defense of the act, asked whether one enters the health care market simply by being born. Four justices seemed to find such a limitless premise for federal regulatory power troubling. They, along with Justice Thomas, may also find it improper.

    Should that happen, leftists, with their newfound conviction that judicial review is anti-majoritarian, will switch into their outraged and indignant mode. How dare the Court strike down an act because it isn’t proper after Obama and the Congress decided that it was?

    The answer will be that the Court is merely giving meaning to the outermost boundary of congressional power. What hangs in the balance this week is whether the powers of Congress are in theory limited but in practice infinite.

     

    5 Responses to “The Improper Individual Mandate”

    1. Whitehall Says:

      Scalia’s opinion to Raich was a huge disappontment to me. Criticism tha Scalia was outcome-directed seemed to apply here.

      I suspect that he’s seeing the error of his Raich opinion in the Arizona ruling and how he has contributed to opening the door to a too powerful central government. His rant against Obama is my evidence.

      I’ll bet that he would vote to overturn Witchard now.

    2. T.K. Tortch Says:

      What I find really depressing about the Mandate is that there are Liberal friends of mine who don’t seem to even recognize the different “flavor” of Commerce Clause power the Feds are seeking to exercise. That worries me much more than those who see that it’s different but favor it anyway.

      The latter group may be naive in thinking that the precedent won’t be used in ways they never intended – power tends to occupy its maximum allowed space – but the former group really seems to have no idea they’ve gone over a line. They can’t have any idea what they may have let themselves in for.

      Obamacare. So many of my Liberal friends have never really been subjected to the tender, hands-on attention of the State and its “human” services. They’ve been lucky they didn’t need them. They are in for a rude, rude shock.

    3. Andrew_M_Garland Says:

      The Supreme court doesn’t matter. It has supported 90% of the transition to an all-powerful executive. It is a bit late to quibble about the remaining, small restricitons. Obama has demonstrated that the executive can do what he wants without causing a general outcry. Our system is now only a power struggle between factions. The rule of law is weak and unpredictable, therefore not useful.

      Scalia is correct in his statement, but a bit late: “If the government can do this, what — what else can it not do?”

      This is like having a rule that ice cream must be eaten only in moderation. Brainless courts approve eating more and more, not finding a clear line to oppose the desire to eat more. When the diet is going from 90% ice cream to all ice cream, this triggers some deep, unavoidable logic. How can 100% ice cream be “moderation”? This produces a 5-4 philosophical discussion. What good are these judges, really?

      The Commerce clause of the Constitution was supposed to maintain free trade between the states. The US was new, each state was full of greedy politicians (as now), and this allowed the new Federal government to keep the states from levying destructive tariffs and other rules on each other which would limit trade between them.

      It wasn’t a rule to grant federal power to regulate a business in detail if it sells something across state lines. It was actually the opposite of that.

      Roosevelt and the New Deal forced the current interpretation as a way to impose federal government control. Sell a donut across state lines? The Feds apply donut regulations to you. There are rulings that producing and consuming your own milk affects interstate prices, so the Feds can apply regulations to you. It is completely natural to apply the same reasoning to just sitting there being uninsured. It is entirely consistent with past rulings and the power of the Feds. It is a bit late to wake up, blink, and say “that isn’t reasonable, to regulate us just because someone might see us across a state line”.

      At this point, accept that you are a serf of the government “for your own good”. You have the choice of electing whomever you wish, but they get dictatorial power over you until the next election. Soon, the elections will be entirely rigged.

      Understand your natural rights. Think hard about what you want the country to be like for your children and for you as you get older. Demand that the Constitution be changed to make its limitations binding, and correct the idiotic rulings which prevent a supposedly free people from asking each other questions (employment law) and trading with each other.

      Russians and Nigerians (for example) are not overall less intelligent, less hard working, or less concerned about their lives than we in the US. They lack a tradition of freedom and they have dictatorial governments. We in the US can become much more like them. All we need is the right sort of government, the sort we are seeing implemented right now.

    4. Cousin Dave Says:

      I don’t have a good feel for which way this is going. Knowing the way SCOTUS usually works, there is likely a faction that would like to find Obamacare unconstitutional, but on narrowly defined grounds that will leave the current Commerce Clause interpretation mostly untouched. However, I think there is another faction that is pulling hard against that. What I don’t have a read on is which faction that is and which way are they pulling. It it a Breyer-led faction that wants to declare Obamacare constitutional and make the Commerce power unlimited? Or is it a Thomas-led faction that wants to open the door to overturning Wickard?

    5. David McFadden Says:

      I disagree with Mr. Garland. Whatever its limits (and I hope after tomorrow it has some), the Commerce Clause was (and is) a grant of regulatory power to Congress. It allowed the new federal government to do more than just “keep the states from levying destructive tariffs and rules on each other which would limit trade between them.” Article I, section 10 is the provision that allows Congress to control tariffs imposed by states.