The 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, to be clear, for practical purposes none of this should matter! The power of Congress to tax and spend to promote the general welfare should be a more than adequate basis for the individual mandate.
Constitutional Challenges Part 2: Health Reform and the Commerce Clause
There is no doubt that the federal government may regulate health insurance under its authority to regulate interstate commerce. And it can regulate not only the interstate aspects of the insurance markets—not only the transactions that cross state lines—but it can also regulate any activities which substantially affect interstate commerce.
Indeed, as the following passage from Justice Scalia’s concurrence in Gonzales v. Raich (2005) suggests, the regulation of commerce may even reach non-economic activity, if doing so would be integral to a comprehensive scheme of regulation of interstate commercial activity:
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.
Igor Volsky cites this passage as evidence that the Affordable Care Act (ACA) is unlikely to be overturned in court, which is true, though not necessarily because of the broad scope of the commerce power. As broad as that power is, it has limits. The arch of major commerce clause caselaw and scholarship has largely been about what counts as economic activity, or what counts as affecting interstate economic activity. But the individual mandate raises an even more basic question: what counts as “activity”?
It seems to me plausible that the Court would say something like this: In order for individuals to be brought within the sphere of federal regulatory authority, those individuals must have taken some relevant, positive action—they must do something—that triggers the application of the regulations to them. Something more than just breathing or walking. Something that requires affirmatively choosing to participate in some aspect of the activity reached by a comprehensive regulatory scheme.
Scalia distinguishes Morrison and Lopez (two major cases from the 1990s which struck down federal statutes as exceeding their authority under the commerce clause) from Raich (which upheld federal regulation of purely intrastate activity) by noting that the laws concerned in Morrison and Lopez were not integral to a comprehensive scheme of regulation. Now, the ACA does not do everything possible to fix our healthcare system, but no one could seriously deny that it takes a comprehensive approach to health-insurance regulation. So it would seem that even Justice Scalia should agree to uphold the individual mandate as an integral policy component that is necessary and proper to a comprehensive scheme of health-insurance regulation under the commerce clause. But an account that turns on the distinction between an activity and the absence of that activity is just the kind of thing Scalia would go for. With relish.
The upshot of a ruling like this would be to require that the individual mandate penalty be triggered by some affirmative activity of the individual, and not merely the individual’s uninsured status. The reasoning would be something like this: The decision to abstain from insurance is not an activity that substantially affects commerce. It is not an activity at all. It does substantially affect commerce, but it is not an activity.
Perhaps an activity requirement could be satisfied by something as simple as receiving medical treatment. Go to the doctor, and you’re subject to the mandate. Or maybe it wouldn’t be so simple. People often do not “choose” out of free volition to get medical care. If free choice is a component of the triggering activity, it might be harder to impose a blanket mandate under the authority of the commerce power.
But that last bit is the key. This limitation would only apply to regulations enacted under the commerce clause. The whole discussion is moot, as I mentioned in the first post, because the individual mandate has a much firmer basis in Congress’s power to tax and spend to promote the general welfare. I’ll do another follow-up on that another time.
OLC Anecdote
A brief aside on the subject of the Office of Legal Counsel: former OLC attorney Neil Kinkopf, now with the administration’s Office of Legal Policy, shared a funny anecdote with me last year. (Kinkopf was teaching at Georgia State, and I took his constitutional law seminar.) The story was that, during the Reagan years, the walls of the OLC were adorned with large portraits of Scalia and Rehnquist, each of whom had run the OLC before their appointments to the Supremes. The portraits celebrated their status as the “true” conservative jurists on the Court. That is, until Rehnquist authored the opinion in Morrison v. Olson (1988). Hardcore jurisprudential conservatives viewed Morrison as a betrayal. The decision dealt a blow to their muscular theory of executive power—or, more precisely, presidential control of the executive—a.k.a., the “unitary theory of the executive.” After Morrison, Rehnquist’s portrait was taken down from the OLC office wall and stuck in a closet (which later became John Yoo’s office). Scalia played the role of lone, ferocious dissenter and secured for his portrait several more years or prominent display in the OLC office.
April Is Unconstitutional
Authority has long established that April is the cruellest month. But it has never before been thought to be, in any legally significant sense, unusual. It seems to come and go once a year, every year, like clockwork. In fact, literally very much like clockwork, just slower.
Now, in an unexpected development, an ideologically diverse majority of the Supreme Court now appears ready to declare the month unconstitutional. Here’s how the votes line up:
Justice THOMAS holds the view that tax day, April 15, was unknown to the founders and that therefore we must not recognize any such day. And while Justice Thomas understands that technically the 15th is just one day in the month of April, he believes it necessary to wipe the slate clean and start fresh. He also notes that there was a time, before the Etruscans, when April did not exist.
Justice SCALIA gets to the heart of the matter and acknowledges that the framers’ view of our modern April is irrelevant in light of the Eighth Amendment’s proscription of punishment that is both cruel and unusual. The term “unusual,” Scalia believes, often calls for evaluation of what the framers thought—but only regarding the things that the framers thought about. So, for example, the death penalty cannot be unusual in the constitutional sense, because the death penalty was in accepted practice at the time of the Eighth’s ratification. But income tax day was not known to the framers and therefore not something the framers thought about. So we must evaluate its significance relative to our own experience in the income-tax era, beginning with ratification of the Sixteenth Amendment in 1913. And in our own experience, there is no other single day of the year like April 15. What word best describes a day that no other day of the year is like? Unusual. Period. End of case.
Justice GINSBURG is disturbed that April might have been named after Aphrodite, goddess of love. Such gender stereotyping must meet an intermediate scrutiny standard, and the government has not demonstrated what important interest it has in glorifying harlotry.
Justice BREYER thinks that Congress could rationally conclude that there was a proper balance between the benefits and burdens of the month of April. However, he stresses that the sheer magnitude of cruelty is itself unusual and, absent specific congressional findings, a pattern of such cruelty shifts the burden to the government.
Chief Justice ROBERTS and Justice ALITO agree with the (likely) dissenters, Justices STEVENS and SOTOMAYOR, that there’s nothing unusual about April. They refer approvingly to Justice Stevens’ comments that in all his years on the bench, not one Justice ever believed anything at all constitutionally amiss about any month of the year, which in any case, is not a punishment and therefore does not invoke the Eighth Amendment’s protections. But Roberts and Alito are not convinced that punishment must be both cruel and unusual at the same time, and that simply being exceedingly cruel may be enough. And furthermore, they say, it would baffle the entire legal system to declare that April was cruel but yet somehow not punishment. If it is cruel, it is punishment. To say otherwise is to split hairs and invite legal wrangling over the question for decades to come.
And Justice KENNEDY finds April to be simply undignified.
The Headless Office of Legal Counsel
President Obama’s nominee to head the Office of Legal Counsel (OLC), Dawn Johnsen, has been held up in the Senate for as long as Barack Obama has been president. On January 20 of this year, a full year into his presidency, Obama re-nominated her for the position he’d first named her for before he even took office.
Democrats have been unable to muster 60 votes to get the nomination past a filibuster. Among the opponents of Johnsen’s nomination have been, on the Democratic side, Arlen Specter and Ben Nelson. And on the Republican side, you know, the Republicans. The issue spurring the opposition? Abortion.
The OLC is charged with formulating legal opinions for the president and the entire executive branch. It is the constitutional brain of the presidency. Its head is an Assistant Attorney General, and anyone who holds the post becomes a likely candidate for appointment to the federal appellate courts thereafter. William Rehnquist and Antonin Scalia each ran the OLC for several years before being nominated for the Supreme Court. But the importance of OLC is not that it is a springboard to bigger things. Rather, it is itself arguably the most important active body of experts in constitutional law. Unlike the courts, which are inherently reactive, the OLC participates in the events that make constitutional law and executive precedents while they are happening. And in the gaping areas of constitutional law that are considered non-justiciable political questions by the courts, and in the ever-growing areas of deference to the executive, the OLC is probably the biggest game in town.
Dawn Johnsen was a strong critic of the Bush administration OLC, which is widely considered to have given substandard—”outrageous,” in Johnsen’s words—legal advice to the president, particularly on the issue of the treatment of suspected terrorists. She also has some of the best credentials one could have for the job: she’s already done it. She was Acting AAG in charge of OLC from 1996-98. Since then she has become a leading academic expert on the OLC.
But apparently she is just too controversial, having worked for NARAL from 1988-1993. Because, of course, nothing illustrates an uncontrollable legal bias like a record of advocating for women’s constitutional rights.
Many observers are disappointed that Johnsen was not among the 15 recess appointments announced last Saturday. Chris Geidner thinks the administration didn’t push Johnsen through with a recess appointment because it doesn’t want to subject the office to further politicization, having been so damaged by abuses in the Bush years. Sounds plausible to me. I only wonder how far the president and his justice department must go to restore OLC’s stature. Because at some point, avoiding the appearance of executive-branch politicization begins to allow legislative-branch politicization to prevent that restoration from ever happening.
The Founders’ Most Deliberative Body
Whenever there’s talk of the founders and their intent to make the Senate the more deliberative chamber of Congress, I think it would be worthwhile to bear in mind some context:
- The great constitutional debates of the first Congress took place in the House of Representatives, not the Senate. The House hardly suffered for lack of deliberation. Notably, the historic debate leading up to the famous “decision of 1789″—which established a congressional precedent by which executive officers were understood to serve at the pleasure of the President—took place in the House. This is especially interesting given that the issue under debate was largely about the unique constitutional powers of the Senate. (One view in the debate held that, because the Senate’s “advice and consent” was required to appoint top executive officers, Senate approval should also be required to remove them.)
- Senate proceedings were actually closed to the public and the press prior to 1794.
- James Madison, “father of the Constitution,” served in the House, not the Senate. That’s not decisive evidence of anything, but no one can deny that Madison had serious deliberation skills.
- When the first Congress was seated in 1789, only eleven states had ratified the constitution. Twenty years later, in 1809, there were 17 states, making 34 senators. There’s no magic number of senators above which limits on debate must be institutionalized to prevent runaway exploitation of the rules protecting minority participation in debate, but surely the size of the body is relevant to the need for such rules. And if so, well, it’s only natural that the Senate did not adopt such rules in the early years—it didn’t need to.1
- The history of senate procedure is actually more complicated than that. There apparently was a rule to stop debate and move to a vote—”moving the previous question”—which was discontinued in 1806. But discussion of that will have to wait for a future post. [↩]
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