Why Obamacare’s Individual Mandate is Unconstitutional

My friends and I have been talking about the two court decisions which recently struck down Obamacare in full or in part, as well as an article written in the Wall Street Journal by a Georgetown Law professor on the same subject.  A federal judge in Virginia, spurred on by our state’s awesome pro-life Catholic Attorney General Ken Cuccinelli, struck down the “individual mandate” requiring everyone to purchase insurance or be fined.  He said that the rest could stand, but that this part wasn’t within Congress’ authority.  After this, a federal judge in Florida, responding to a suit brought by twenty-six states, also found the individual mandate unconstitutional, but in this case, he struck down the whole law.  Now, both of their decisions are stayed pending appeal, meaning that they aren’t legally enforceable yet, but it means that the Circuit Courts are going to have to look at this issue, which is the step before the Supreme Court finally hears it (which it almost certainly will have to).

In any case, here’s why I think that the judge in Florida, Judge Roger Vinson, is fundamentally correct that (a) the individual mandate is unconstitutional, and (b) this means that the entire bill was properly struck down.

Background
First, Con Law 101: Congress gets all of its authority from Article I of the Constitution. The whole notion of “constitutionally limited government” is that Congress can’t just do whatever it wants. The Constitution, enacted by popular referendum by the original thirteen states, gives specific powers to the government, and reserves the remainder for the states (Amendment X) and the people themselves (Amendment IX). In this way, the government is “of the people,” since the people enacted the Constitution setting everything else in place.

I.
The Supreme Court in the New Deal era really did risk abolishing this system in favor of the form of government most of the world has, in which the government can do whatever it wants. Prior to the New Deal, the Commerce Clause was viewed much more conservatively, to govern only interstate commerce and perhaps that intrastate commerce with a direct effect on interstate (so railroads which operated only within a certain state were off-limits, as were intrastate production, manufacturing, and mining operations).

The high-water mark came with United States v. Darby, 312 US 100 (1941) and particularly Wickard v. Filburn, 317 U.S. 111 (1942). In Wickard, the Court held that a federal law governing food quotas and price controls was constitutional even as applied against a farmer growing corn for his own consumption. In the opinion, the Court determined expressly that it didn’t matter if the economic impact was direct or indirect on interstate commerce. So Wickard came pretty close to saying “the Commerce Clause means you can do anything.” All of this should be viewed through the prism of history: these are cases in which the federal government is trying to stave off the collapse of the entire country through a Great Depression and then a massive World War. It looked like a choice between fidelity to the letter of the Constitution and saving America, and the Court chose the latter.

II.
But even at this high-water mark, the Commerce Clause still had very real limits, which the Court in Wickard expressly acknowledged. Although law school treats the Commerce Clause as unbounded authority, the Court has always denied this, even when it permits massive governmental involvement in intrastate commerce. Remember that Wickard dealt with a law that intended to regulate interstate commerce, and only incidentally had an impact on the farmer growing corn for his personal use. In Maryland v. Wirtz, 392 US 183, 196 fn. 27 (1968), the Warren Court said that in Wickard, the “Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” So at least in Wirtz’s view of Wickard, the outcome wouldn’t have been the same if the law had been targeting farmers growing corn for their own use.

The Wickard Court didn’t hold, and wouldn’t have held, that the government could apply the quota to those people who weren’t growing crops. A law that said “everybody has to grow liberty cabbage” would have been obviously unconstitutional, even during the New Deal. United States v. Lopez, 514 US 549 (1995) does a good job of looking at the most extreme Commerce Clause cases (including Wickard), and showing their lip service towards real Constitutional limits.

Plus, lest we forget, since the New Deal, the Court has largely walked back this broad interpretation in terms of something more conservative. Part of it is that the modern Court is somewhat more economically conservative – political conservativism pre-Milton Friedman was less in love with the free market – and part of this is that we’re no longer holding on to national survival while facing down a Depression and Hitler. So in Lopez, for example, the Court struck down the Gun-Free School Zones Act, even though Congress tried to hide behind the Commerce Clause. United States v. Morrison, 529 U.S. 598 (2000) struck down the Violence Against Women Act. Admittedly, Lopez and Morrison are inapplicable here, but it signals a shift in the wind. Even in Gonzales v. Raich, 545 U.S. 1 (2005), in which the Court (including Scalia!) voted to uphold federal laws against intrastate marijuana use, it was because it was part of a genuine federal scheme to regulate interstate marijuana use.

III.
Obamacare goes beyond even the most extreme New Deal cases for two reasons. One, it’s not a genuine scheme to regulate interstate commerce, because health insurance is intrastate-only as a matter of law. Federal law says that an insurance company can’t operate interstate.

And two, the absence of commerce isn’t commerce. The power to regulate commerce doesn’t mean the power to force commerce where none exists. For example, the FDA has the power to regulate food and drugs, and pursuant to that power, can restrict certain products from coming to market for good cause. But that power doesn’t mean it can force you to eat 5 servings of veggies a day. That’s well beyond its regulatory power.

So I think that if the Court approves the individual mandate, it’ll be setting a new high-water mark for the Commerce Clause, and effectively pulling out all the stops. It would also create a baffling situation in which Congress can’t constitutionally prohibit guns from being near schools, but could constitutionally require everyone to buy and sell guns at schools.

IV.
Finally, severability. VA severed, FL didn’t. FL was probably right. James Taranto of WSJ explains, but short-answer is that if Congress wants a trimmed-down version without an individual mandate, let them pass it. The Court isn’t in the business of rewriting the law. So in refusing to sever, the FL judge was actually respecting the limits to his own authority.  Besides this, Obama and others said that the individual mandate was critical to the Act.  That made this an all or nothing situation, and since “all” is unconstitutional, that leaves “nothing.”

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