Randy Barnett looks at the radicalism of the legal theory invoked to defend Obamacare. Barnett admits that he himself adheres to a particularly narrow view of the scope of federal powers and particularly broad view of the Ninth and Tenth Amendments, but as he points out, even if you don’t buy his vision of the Constitution, the counter-argument would all but eliminate the existing limits on Congress’ enumerated powers. Key excerpt:
[W]e are all looking at the law as it currently exists and observing that the Supreme Court has never upheld the use of the commerce power to mandate that everyone engage in economic activity. All it has ever done is regulate or prohibit those who choose to engage in economic activity. As such there is no existing authority for extending the Commerce Clause this far.
This is an entirely conventional legal argument….[T]he claim that this power is unprecedented is demonstrably true. If the commerce power had ever been used like this before, these lawprofs would have been able to produce an example….
[Y]ou want to know another claim that is unprecedented? The claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS. I do not know who first came up with this theory, but whoever it was was pushing the envelope of federal power beyond anywhere it had ever gone. The Tax power has never been used to impose a mandate on the American people and the Supreme Court has never recognized such a power.
So I will make this prediction: If five justice vote to uphold the individual mandate, they won’t use the Tax power theory because (a) its implications are just too radical and (b) there is zero public support for such a constitutional proposition.
Read the whole thing.
9 thoughts on “Swallowing The Rule”
Even noted constitutional scholar Barack Obama wholly rejected the notion that the mandate could be construed as a tax…
The idea that this is a radical extension of the Commerce Clause power depends on the level at which you frame the issue. If you frame the issue as Congress’ authority to compel citizens to engage in a particular economic activity then yes it is a radical extension. But the Supreme Court has clearly held that Congress has the power to regulate the interstate market for a good (this hardly seems controversial), and what is this bill but a regulation of the interstate market for health care? Don’t get me wrong; I’m very divided on the policy of the bill (I’m an Obama supporter in favor of drastic health care reform, but am against this particular bill for a variety of policy reasons), but the idea that the bill makes bad policy should not be confused with a lack of constitutionality.
As a last note, just because something’s unprecedented does not mean the Constitution prohibits (or commands, depending on the particular point at issue) it. At one point, the notion that the Fourteenth Amendment banned segregation in public schools was unprecedented, too. I think SCOTUS got it right that time.
But the Supreme Court has clearly held that Congress has the power to regulate the interstate market for a good
i don’t think the author disagrees with you. The problem is, the mandate does not regulate the interstate market, it regulates the consumers, or more aptly put, American citizens.
Regulation would mandate the type and breadth of insurance the companies must provide. Telling me I have to purchase insurance is not regulating the insurance industry, it’s forcing me into the industry against my will. That is exactly what this is doing and what you have just said is a radical extension of the Commerce Clause.
1. It’s ironic to invoke the interstate market when health insurance can’t be sold across state lines.
2. The issue with this argument being unprecedented is that at the same time, its proponents are claiming that it’s uncontroversial settled law.
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Forcing consumers into a market is regulating a market, just as prohibiting sale of the good is. Fact of the matter is, when it comes to economic matters of national concern, the Commerce Clause gives Congress extraordinarily broad latitude to legislate.
I don’t mean to suggest that there’s a large body of precedent supporting this particular use of the commerce power. But it’s hardly crazy, and the logic and principle of prior decisions suggest it should be upheld. And at the end of the day, the courts give economic regulations of Congress under the Commerce Clause rational basis review, which pretty much is an “if it’s not crazy standard.”
Is there any doubt that there’s an interstate market for health insurance? The prohibition on its interstate sale is part of that regulation of the interstate market. This bill is just another step in that regulation.
Just because Congress hasn’t done this precise thing before or just because something is ill-advised doesn’t mean it’s unconstitutional.
Forcing consumers into a market is regulating a market, just as prohibiting sale of the good is.
In what world do you live in where what you just wrote actual makes sense?
Forcing customers into a market ‘creates’ a market, it doesn’t regulate it. Under no economic definition can forced entry of unwilling consumers be considered ‘regulation’ of a market.
Forcing the consumer into the market is regulating the consumer, forcing them to spend their money on a service they neither want nor, in many circumstances, currently need.
You’re so far off base with your assertion that it’s hard to fathom that you’re actually being serious. In fact, what it really does is really reveal that your bias is blinding you from reality.
At the risk of delving too far into personalities (rather than the merits of the debate) here, I’m not sure how I can be biased here (of course, no one ever thinks they’re biased, but that’s a different story all together) given that I actually oppose this bill, and have stated as much in a prior post. It seems to me that those who assert the bill is unconstitutional are letting their biases get in the way of sound constitutional analysis. A bad law does not equal an unconstitutional one. That’s sort of the point of this whole “democracy” thing.
Ok, on to more serious topics. When it comes to regulating a market I find it difficult to see a principled distinction b/w prohibiting and creating a market with respect to determining whether something is a regulation of the MARKET. There IS a principled distinction in that creating a market in this way arguably infringes on some sort of liberty interest of consumers to abstain from entering the market if they so wish. But that liberty interest, absent in the case of a prohibition (although is it really “absent” in such a case? Who’s to say that a person’s liberty interest in wanting to enter a particular market is any greater than an individual’s interest in wanting to abstain from a market?), does not render the regulation “not a regulation of the market.” It may provide an independent reason for thinking it unwise or perhaps even unconstitutional, but it remains a regulation of the market.
Momentarily putting the liberty interest aside, let’s call a “regulation” of a market any rule or law that governs the the circumstances in which a good is to be distributed or used. Under this definition, forcing consumers into a market is a regulation because it defines the circumstances of the distribution of a good (health care), in particular by requiring purchase of that good by everyone.
Perhaps you reject my definition of “regulation.” If that’s the case, that’s ok, but now we’re simply in a battle of semantics about what constitutes a “regulation” (a brief note on the semantics battle, but then to the substance: if forcing consumers into a market is not a “regulation,” then how is prohibiting that market all together? Alas, I digress). Ok, we don’t need to call it a “regulation” of the market (although I lack a better term to describe it). If that’s the case, though, it still leaves unanswered the question of why, precisely, Congress lacks authority under the Commerce Clause to pass laws governing economic matters of national concern (can there be any doubt that health care is an economic matter of national concern?). Whether you want to call this “regulating the market” or “forcing consumers into the market” (personally, I see it as both), this bill remains a law on an economic matter of national concern, and that is the heart of the Commerce Clause power.
Returning to the liberty interest: I don’t doubt there’s some sort of liberty interest in refraining from entering the health care, or any other, market. But laws implicating economic liberties are subject to rational basis review, meaning that if there is any conceivable rational basis upon which the law might be based it will be upheld. As much as I don’t like the bill, it simply cannot be shown that it violates this standard. Again, although ill-advised, it is hardly crazy. And that is the essence of rational basis review of economic regulations.
As a final note, this is not the first time the government has compelled economic conduct or entry into the market. Taxes, for one, but more on point is social security. The government forces us into the market for retirement benefits. Heck, this isn’t even the only time government has forced us into the insurance market, as many states have laws requiring drivers to carry auto-insurance (yes, I know that these powers don’t emanate from the federal constitution, but the due process clause, which would be the source of any valid “liberty” argument against the bill, does). I don’t mean to suggest that the tax and spend/general welfare powers are proper bases for Congress’ authority here, nor that health care is precisely analogous to them, but the idea that forcing consumers into a market is per se violative of some sort of fundamental economic liberty is not supported by history or Supreme Court precedent.
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