RSS FeedThe Individual Mandate and the Limits of Commerce
Estimable commentators (Yglesias, Volsky) have been somewhat hasty, I think, in concluding that the general authority of Congress to regulate insurance under the commerce clause also supports its imposition of the individual mandate, which is, in a sense, a regulation of the uninsured. So let’s hash it out again a bit more methodically.
In the Supreme Court’s customary formulation of the scope of the commerce power, Congress may regulate: (1) the “channels” of interstate commerce, (2) people and things (“agents” and “instrumentalities” in the lingo) in interstate commerce, and (3) “activities that substantially affect” interstate commerce.
In its broadest sweep, the commerce power may also reach even (4) noneconomic, local activities, if doing so is necessary and proper to a general scheme of interstate-commerce regulation. Even Justice Scalia, bane of liberals, endorsed this relatively expansive view of the commerce power in Gonzales v. Raich (2005).
In order to regulate anything under the commerce clause, Congress must act in one of these four categories. The individual mandate is a regulation that targets individuals without insurance. Such individuals are not (1) channels of interstate commerce. Nor are they (2) agents or instrumentalities of interstate commerce with respect to health insurance. By definition, the uninsured are people who are not participating in health-insurance markets.
That leaves (3) and (4). Certainly the uninsured substantially affect the insurance markets. And certainly the individual mandate is integral to the PPACA’s comprehensive scheme of health-insurance regulation. But here’s the nub of it. Both (3) and (4) allow Congress to extend its reach to certain “activities”—namely, those that substantially affect commerce and those that must be regulated to give effect to a general scheme of regulating interstate commerce.
Is being uninsured an “activity”? I would have to say no. Buying insurance is an activity. But not buying insurance is how you describe someone who is not engaged in the activity of buying insurance. It’s not just another way of buying insurance. It would be perverse if not doing X were the legal equivalent of doing X.
It seems to me that we should distinguish between an activity (which can be regulated) and a status (which cannot). Lacking insurance is not something you do. It’s a status. And it’s not the kind of status you obtain as a consequence of doing something else—something that can be regulated. So it’s not like being an uninsured driver, where the status requirement applies only after you engage in the activity. (State law auto-insurance mandates are a common, but unfortunate analogy to the federal health-insurance mandate. The states are not limited by the commerce clause and can regulate on the basis of status, as long as they do not violate the Fourteenth Amendment’s equal protection clause.)
Maybe there is some other activity on which to predicate the health-insurance status requirement. But if there is, it’s not obvious. For example, you might suggest that consuming healthcare resources is a regulable activity. And maybe it is, but it’s often not a freely chosen activity. It’s hard to say whether that matters or not for constitutional purposes.
But, just to be clear, for practical purposes none of this matters! The power of Congress to tax and spend to promote the general welfare is a more than adequate basis for the individual mandate.
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[...] I’ve written many times before, the argument that the individual mandate exceeds the commerce power is not [...]