The Liberty Papers

After a piece last month in the Washington Post, which I wrote about here, lawyers David Rivkin and Lee Casey are back with a piece in the Wall Street Journal expanding on their argument that a requirement that every American buy health insurance would be unconstitutional. This time, they argue that, even under current commerce clause precedent, there is no Constitutional authority for a Federal health insurance mandate:

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such “activities, taken in the aggregate, substantially affect interstate commerce.”

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Of course, a health-care mandate would not regulate any “activity,” such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Article 1, Section 8, Clause 3 of the Constitution sets forth Congresses commerce power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Strictly construed the Commerce Clause would not seem to be that broad of a grant of power. After all, the chief ill that it was aimed at was to allow goods and business to flow easily between the respective states, something that was not possible under the Articles of Confederation. However, the Supreme Court has interpreted the clause so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

As the article notes, in 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.” Even if a grower were to incorperate a grow room design in the cultivation process, as long as it is local then it is not automatically “Commerce among the several states”.
“

Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Given this trend, the a Constitutional challenge to an individual mandate would seem to be a potentially successful argument. However, as Eugene Volokh pointed out in a post responding to the original WaPo article, that isn’t necessarily the case:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

At best then, this would seem to be a very close call and, given almost 200 years of Supreme Court precedent it seems unlikely that a Court would overturn something as far reaching as a health care reform plan — although as the National Recovery Administration learned in 1935, it’s not impossible.