Tuesday, February 1, 2011

Senate Judiciary Committee to Consider Constitutionality of Health Care Reform

The Senate Judiciary Committee will take up the constitutionality of the Affordable Care Act this morning, 10:00 a.m. (EST).  Here's the witness list:

  • Oregon AG John Kroger
  • Randy Barnett
  • Jones Day Partner Michael Carvin
  • Walter Dellinger
  • Charles Fried

The hearing comes on the heels of Judge Vinson's (N.D. Fla.) ruling on Monday that the individual mandate exceeds Congress's Commerce Clause and Necessary and Proper Clause authority, that the mandate is not severable from the rest of the Act, and that therefore the entire Act is unconstitutional.

Judge Vinson's ruling is the second federal district court ruling that the individual insurance mandate exceeds congressional authority.  (We posted on the first one here.)  There are also two federal district court rulings that the mandate falls within congressional authority; we posted here and here.

The hearing will have no legal or constitutional significance.  Anything that can be said about the constitutionality of the Act has already been said (and argued in the courts), and the Senate already made its own judgment on the constitutionality of the Act when it passed it in the first place.


February 1, 2011 in Commerce Clause, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Monday, January 31, 2011

Judge Vinson Rules Health Care Reform Unconstitutional

Judge Vinson (N.D. Fla.) ruled today in State of Florida v. U.S. Dep't of Health and Human Services that the Patient Protection and Affordable Health Care Act was unconstitutional--in its entirety.  The ruling declared that the individual health insurance mandate exceeded congressional authority under the Commerce Clause and the Necessary and Proper Clause.  Judge Vinson wrote that because the mandate cannot be severed from the rest of the Act, the whole thing was unconstitutional.  We posted previously on the case--which was brought by governors or AGs in 26 states, two private citizens, and a business association--here and here.

In striking down the mandate, Judge Vinson ruled that the Commerce Clause only authorizes Congress to regulate activity, that failure to purchase health insurance is not an activity, and that there's nothing inherent or unique in the health care market or in the decision not to purchase health insurance that ties the failure to purchase health insurance to interstate commerce.

Judge Vinson emphasized throughout his analysis that the question--whether Congress can regulate a non-"activity"--was novel.  This alone, he ruled, did not make it unconstitutional.  But it seemed to put a heavy thumb on the scale in his analysis.  (He didn't seem troubled that other congressional acts upheld under the Commerce Clause were also "novel" when they first came to the courts: wheat production for home use in Wickard v. Filburn and home production and use of marijuana in Gonzales v. Raich, just to name two.  But he did write this about Wickard: "[B]efore Wickard was decided, it is likely that most people (including legal scholars and judges) would have thought it equally "ridiculous" to believe that Congress would one day seek (and be permitted) to regulate (as interstate commerce) the amount of wheat that a farmer grew on a small private farm for his personal consumption."  Op. at 47, n. 20.)

He also emphasized the unbridled power that would result if Congress could require individuals to purchase health insurance: if Congress could do this, he wrote, Congress could do anything--require us to buy certain cars, to buy certain bread, and even to buy broccoli.  These kinds of regulations exceed congressional authority, he wrote, because they run counter to the Framers' intent and to precedent and practice.

Judge Vinson was perhaps most emphatic in writing that the non-act of not purchasing health insurance had no effect on interstate commerce:

If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero.  Of course, any other figure multiplied by zero is also zero.  Consequently, [even the aggregate] impact must be zero, and of no effect on interstate commerce.

Op. at 50.  According to Judge Vinson, it would require "pil[ing] inference upon inference" to get from not insuring to the interstate economy, thus running afoul of the principle in U.S. v. Lopez

Judge Vinson wrote separately about the Necessary and Proper Clause.  He wrote that this Clause also failed to support the individual mandate, largely because the Commerce Clause didn't support the mandate:

The Necessary and Proper Clause cannot be utilized to "pass laws for the accomplishment of objects" that are not within Congress' enumerated powers.  As the previous analysis of the defendants' Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution.  To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established "outer limits" of the Commerce Clause and effectively remove all limits on federal power.

Op. at 62.

Judge Vinson ruled that the Medicaid expansion portion of the Act did not violate the Spending Clause.  He ruled that it clearly met the standards under South Dakota v. Dole and that it didn't unconstitutionally "coerce" the states.  (The states argued that the expansion coerced them into continuing their participation in Medicaid, even as the cost of participating became unsustainable.)

But he nevertheless ruled the entire Act unconstitutional, because, he wrote, the individual mandate wasn't severable from the rest of the Act.

Judge Vinson's ruling is now the second federal district court ruling that the individual mandate is unconstitutional.  (Judge Henry Hudson (E.D. Va.) issued the first ruling last month.)  There are also two federal court rulings upholding the constitutionality of the mandate.


January 31, 2011 in Commerce Clause, Congressional Authority, Opinion Analysis, Recent Cases, Spending Clause | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 18, 2011

The Two Faces of Hudson's Commerce Clause

Professor Corey Rayburn Yung (John Marshall, Chicago) wrote earlier this month on St. Louis Today that Judge Hudson (E.D. Va.) hasn't been entirely consistent in his views on the Commerce Clause.

Recall: Judge Hudson ruled last month that the individual health insurance mandate in the federal health care reform legislation exceeded Congress's Commerce Clause authority because it required a positive act (and didn't merely prohibit action)--a popular position among those who argue against the mandate's constitutionality.

But Yung points out that Judge Hudson ruled just over a year earlier that a different federal requirement to act was well within Commerce Clause authority.  That case, U.S. v. Dean, involved the federal Sex Offender Registration and Notification Act (SORNA) and its requirement that sex offenders registered with the comprehensive national registration system that SORNA created--whether or not they cross state lines.  Yung:

In the case of health care reform, opponents have argued that Congress' power extends only to "activities" and that the so-called "mandate" actually punishes people for "inactivity"--failing to purchase health insurance.  In the case of sex-offender registration, a similar "inactivity" is being regulated: failing to register with the government.  Like Hudson, every federal appellate court that has reviewed the federal sex-offender-registration law has found it to be within Congress' powers.

Despite the similarities between the statutes, the more recent opinion by Hudson is radically different from when he reviewed the federal sex-offender-registration statute.  In his opinion regarding the health care law, Judge Hudson wrote that in order to "survive a constitutional challenge, the subject matter must be economic in nature . . . and it must involve activity."

That clear statement of law simply cannot be reconciled with his prior opinion because a failure to register as a sex offender is neither economic nor activity.

Judge Hudson wrote this in Dean:

When evaluating the impact of an activity on interstate commerce, the [Fourth Circuit] commented that "the question is not simply whether one particular offense has a measurable impact upon interstate commerce, but whether the relevant class of acts has such an impact."  With this principle in mind, the Fourth Circuit concluded that "even though the comprehensive federal registration system created by SORNA may implicate a sex offender who does not cross state lines, the potential for recidivism and flight across state lines of all sex offenders is sufficiently real and substantial to be taken as a serious and extensive part of the larger interstate problem, justifying the comprehensive regulation.  The court found further support for its conclusion in the fact that Congress's regulatory scheme would be severely hampered unless all sex offenders were required to register.

As a result of the Fourth Circuit's analysis . . . this Court finds that the registration requirements detailed in [SORNA] are valid under the Commerce Clause. . . .

Dean, 670 F. Supp. 457, 460 (citations omitted, emphasis in original).  (Judge Hudson's refers to the Fourth Circuit case of U.S. v. Gould, which upheld the federal criminal penalty for sex offenders who travel across state lines and fail to register, but which did not directly opine on the federal regulation to register in the first place.  Again: this regulation applies whether or not a sex offender crosses state lines.)

Judge Hudson's analysis above seems to apply with even greater force to the individual mandate.

But more: Judge Hudson went on to write that the Necessary and Proper Clause provided additional support for this conclusion.  And notably he cited no Fourth Circuit case for this part of his opinion, suggesting that he wasn't merely and begrudgingly following the Fourth Circuit's reasoning in Gould but (if there were any doubt) also using his own judgment, thus underscoring the inconsistency with his more recent health reform ruling.


January 18, 2011 in Commerce Clause, Congressional Authority, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 11, 2011

Justice Thomas: Denial Nullifies Recent Commerce Clause Jurisprudence

Justice Thomas dissented yesterday (joined by Justice Scalia) in a denial of review of a case that the Court might have used to clarify the scope of the Commerce Clause.  Instead, Justice Thomas argued, the Court in denying review "tacitly accepts the nullification of our recent Commerce Clause jurisprudence."  Op. at 1.

While Justice Thomas overstates the significance of the denial of review, his dissent may give us some clues about the Court's most recent thinking on the Commerce Clause.

The case, Alderman v. U.S., involves 18 U.S.C. Sec. 931(a), the federal statute that outlaws body armor for anyone who has been convicted of a felony crime of violence and where the body armor was sold or offered for sale in interstate commerce.  Alderman was charged with violating the statute and entered a conditional plea.  He then appealed, arguing that the statute exceeded Congress's Commerce Clause authority.

A divided three-judge panel of the Ninth Circuit rejected the argument and upheld the statute.  The panel looked to the Court's 1977 ruling in Scarborough v. United States, a case involving a federal prohibition on possession of firearms by felons.  While Scarborough involved a different federal statute, it contained a similar "jurisdictional element"--a requirement that the regulated thing (there a firearm, here body armor) traveled in interstate commerce.  Thus Scarborough "considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce."  Op. at 7 (quoting United States v. Cortes (9th Cir. 2002)).  Scarborough did not directly address the constitutional question, but the Ninth Circuit ruled that it "implicitly assumed the constitutionality of the 'in commerce' requirement."  Op. at 7.  Thus, the Ninth Circuit ruled, Scarborough holds that a statute's jurisdictional element alone can put a statute within congressional power "[t]o regulate Commerce . . . among the several states . . . ."  Art. I, Sec. 8, the Commerce Clause.  Just as the jurisdictional element in Scarborough kept the federal firearm restriction within Congress's Commerce Clause authority, so too here the jurisdictional element keeps the federal body armor restriction within Congress's Commerce Clause authority.

The Ninth Circuit denied en banc review, and yesterday the Supreme Court denied review.

Justice Thomas (joined by Justice Scalia in all but a footnote referring to some of Justice Thomas's other writings on the scope of the Commerce Clause) wrote that the denial "nullified" more recent Commerce Clause jurisprudence, United States v. Lopez and United States v. Morrison.  Those cases held that Congress can regulate activities that have a substantial effect on interstate commerce, as measured by four considerations: whether the activity is commercial, or has anything to do with commerce; whether the statute contains a jurisdictional element; whether the legislative history contains any findings as to the effect on interstate commerce; and whether the link between the activity and a substantial effect on interstate commerce is too attenuated. 

Justice Thomas argues that the denial amounts to privileging the jurisdictional element above all else and ignoring the statute's encroachment on traditional state police powers.  According to Justice Thomas, this approach knows no bounds and would allow Congress to regulate everything from stolen candy transported across state lines to french fries purchased in another state.

Justice Thomas overstates the denial's impact on Lopez and Morrison.  A denial of review does not change the Supreme Court's jurisprudence, even implicitly.  And there may be any number of non-merits reasons why the Court denied review.

On the other hand, the Court's denial and Justice Thomas's dissent may tell us something about the Court's thinking on the Commerce Clause.  For one, the denial leaves the Ninth Circuit ruling in place, along with similar rulings in other circuits.  With no circuit going the the other way (rejecting congressional authority), the Ninth Circuit is now just the latest in a growing line of rulings that a jurisdictional element alone can authorize congressional regulation under the Commerce Clause.  This is significant: If the Court wanted to reverse this line and rein in the lower courts, as Justice Thomas argued, this seemed like the perfect case. 

Thus the Court's denial could mean that it doesn't want to reverse this line.  And that's plausible: The Ninth Circuit's approach isn't necessarily inconsistent with Lopez or Morrison; it's really a special case.  Neither Lopez nor Morrison gave any indication how the Court would weigh the four considerations if there were a clear and well defined jurisdictional element limiting the statute to activities sufficiently linked to interstate commerce.  Such an element--as here, as in Scarborough--may just be enough for the Court. 

For another, Justice Thomas was joined only by Justice Scalia.  That's not to say that others don't agree with the analysis--perhaps they do.  But none felt strongly enough about it to sign on.

Still, we can't read too much, if anything, from a dissent to the Court's denial of review.  Maybe the Court is inclined to take a look at this question, but this was just the wrong case at the wrong time.  In any event, the denial and Justice Thomas's dissent give us no clues as to how the Court might rule on the Commerce Clause issue of the day--the individual health insurance mandate.  The question there--whether the Commerce Clause authorizes Congress to require individuals to purchase insurance--is just too different from the question in Alderman.


January 11, 2011 in Commerce Clause, Congressional Authority, News, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Monday, December 13, 2010

Health Care Reform Unconstitutional, District Judge Rules

Judge Henry Hudson (E.D. Va.) today in Virginia v. Sebelius ruled the individual health-insurance mandate in the federal health care reform package unconstitutional.  Judge Hudson ruled that the individual mandate exceeded Congress's authority under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare (Tax) Clause.  The decision was unsurprising.  (Judge Hudson previously denied the government's motion to dismiss, anticipating his ruling on the merits here.)  Here are some highlights:

  • The Commerce Clause.  Judge Hudson ruled that the individual mandate exceeded congressional authority under the Commerce Clause, because it regulates "inactivity," not economic activity.  Judge Hudson described this as unprecedented--leading to unfettered congressional authority.  The mandate wasn't saved by an aggregation theory, taking the aggregate economic effect of decisions not to purchase health insurance.
  • The Necessary and Proper Clause.  Judge Hudson ruled that the Necessary and Proper Clause added nothing to the Commerce Clause: If the power's not in the Commerce Clause, the Necessary and Proper Clause doesn't give Congress the power to do it.  This is rather breathtaking, given the Supreme Court's ruling last term in U.S. v. Comstock, upholding the federal civil commitment statute under the Necessary and Proper Clause, and, in the course, reinforcing a broad reading of the Necessary and Proper Clause.
  • The General Welfare Clause.  Judge Hudson ruled that the mandate operated as a penalty masquerading as a tax.  Interestingly, he pointed to congressional intent here, suggesting that the tax for failing to purchase health insurance is, in fact, a penalty.  (He didn't similarly defer to Congress on the Commerce Clause and Necessary and Proper Clause.)
  • The Tenth Amendment.  The Tenth Amendment played a very minor role in the decision.  Judge Hudson quoted it at the end of his tax analysis, writing first that Congress has defined authority under the Constitution under Article I, Section 8, and next merely quoting and citing the Tenth Amendment.
  • Relief.  Judge Hudson severed the individual mandate and directly dependent provisions from the rest of the legislation, ruling that only those sections are unconstitutional (and preserving the rest of the legislation).  He also only issued a declaratory judgment, not injunctive relief.  The ruling is thus quite narrow and recognizes that the issue will be resolved finally in the higher courts.

We most recently posted on health reform lawsuits here, in Liberty University v. Geithner.  In that case, the federal district judge dismissed a similar constitutional challenge to reform.  Check out the ACA Litigation Blog for litigation documents in all these cases.



December 13, 2010 in Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Recent Cases, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 30, 2010

Federal Judge Dismisses Case Against Health Care Reform

Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation.  The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.

Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform.  The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague.  Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.

On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate.  Judge Moon wrote that

The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison.  Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care.  The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . .  Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.

Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform).  Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:

As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .

The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.

Op. at 31.

As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).

As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson.  The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.

As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices.  "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  Op. at 43.

Judge Moon ruled that the religious exemptions also did not violate equal protection.  "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review."  Op. at 46.  The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.

As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association.  "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services."  Op. at 49.  Any required association is minimal.  And the federal act does not require the plaintiffs to speak on, or to support, abortion.

As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce."  Op. at 52 (quoting Head Money Cases.)

Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people.  "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process."  Op. at 53.


November 30, 2010 in Association, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, Federalism, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Religion, Ripeness, Speech, Standing, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, November 20, 2010

Republican Senators File Amicus Opposing Health Care Reform

Thirty-three Republican Senators filed an amicus brief in the Northern District of Florida case challenging federal health care reform.  (We posted yesterday that state lawmakers filed their own amicus supporting reform.) 

The Republicans' brief collects and restates the several well known arguments that Congress lacked authority to enact the individual health insurance mandate under the Commerce Clause.  Thus the brief argues that (1) not getting health insurance isn't commerce and therefore isn't subject to Commerce Clause regulation, (2) at no time in our history has Congress required a "passive" person to purchase something under its Commerce Clause authority (and courts have never upheld this kind of exercise), (3) the government's theory would result in an unbridled Commerce Clause that would intrude into areas reserved for the states, vastly expand Congress's authority, and upset the delicate balance between federal enumerated powers and state police powers.

These are familiar arguments.  But two points in the brief caught my attention.  First, the Republicans argue that Congress didn't even find that not buying insurance substantially affects interstate commerce.  Instead, they argue, Congress found only that requiring the purchase of health insurance would substantially affect interstate commerce.  They argue that the Court requires Congress to find that the action regulated--and not the regulation itself--substantially affects interstate commerce, and therefore even Congress didn't find facts sufficient to support the exercise of its Commerce Clause authority in this way.

They also argue that while Congress has required "passive" individuals to do something under other Article I authorities (e.g., the authority to raise and support armies), it has never done so under the Commerce Clause.  They don't explain why this matters--why the principle that Congress can require action under one Article I authority doesn't transfer to other Article I authorities--except to say that authority here would lead to a limitless Commerce Clause. 


November 20, 2010 in Commerce Clause, Congressional Authority, Federalism, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, October 14, 2010

Florida District Judge Rules on Motion to Dismiss Health Care Reform Challenge

In a 65 page opinion issued today, Senior United States District Judge Roger Vinson of the Northern District of Florida has granted in part and denied in part the morion to dismiss the complaint.

The Complaint alleges that the Health Care Reform Act is unconstitutional on various grounds in six counts and the Motion to Dismiss was directed at all the counts.

Here is the bottom line:

(1) the individual mandate and concomitant penalty exceed Congressional authority under the Commerce Clause and violate the Ninth and Tenth Amendments;   NOT DISMISSED

(2) the individual mandate and penalty violate substantive due process under the Fifth Amendment; DISMISSED

(3) if the penalty imposed for failing to comply with the individual mandate is found to be a tax, it is an unconstitutional unapportioned capitation or direct tax in violation of U.S. Const. art. I, § 9, cl. 4, and the Ninth and Tenth Amendments; DISMISSED AS MOOT

(4) the Act coerces and commandeers the states with respect to Medicaid by altering and expanding the program in violation of Article I and the Ninth and Tenth Amendments; NOT DISMISSED

(5) it coerces and commandeers with respect to the health benefit exchanges in violation of Article I and the Ninth and Tenth Amendments; DISMISSED

(6) the employer mandate interferes with the states' sovereignty as large employers and in the performance of government functions in violation of Article I and the Ninth and Tenth Amendments; DISMISSED

 Thus, the case will proceed on the issue of whether the individual mandate is in excess of Congress' commerce power in contravention of the Tenth Amendment and on the issue of whether the Medicaid changes are in excess of Congress' Article I power and in contravention of the Tenth Amendment.


October 14, 2010 in Commerce Clause, Medical Decisions, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, September 27, 2010

Washington High Court Upholds State Internet Gambling Ban

The Washington Supreme Court last week unanimously upheld the state's ban on internet gambling against a Dormant Commerce Clause challenging, ruling that the ban was not "clearly excessive" in relation to legitimate state interests.

The case, Rousso v. State of Washington, involved a Washington statute that criminalizes "the knowing transmission and reception of gambling information by various means, including use of the Internet."  The plaintiff, a Washington would-be gambler, claimed that the statute discriminated against out-of-staters in its effects and that Washington could have achieved its objectives by merely regulating, not completely banning, internet gambling.

The high court disagreed.  In an opinion chock full of deference to the legislature and liberally laced with separation-of-powers and institutional competence concerns, the court ruled that the ban did not discriminate against out-of-staters, either on its face or in effect.  It thus applied the familiar test that an evenhanded law does not violate the Commerce Clause if (1) there is a legitimate state purpose and (2) the burden imposed on interstate commerce is not "clearly excessive" in relation to the law's benefit. 

Here, the state was concerned about gambling addiction, underage gambling, money laundering, and organized crime--clearly legitimate state purposes.  The court ruled that the ban was not "clearly excessive" because any lesser action--regulation of internet gambling, e.g.--would be unduly burdensome and would not similarly achieve the benefits of the ban.  Even though the state regulates, not bans, "brick and mortar gambling operations," similar state regulation of internet gambling "would be an interstate-commerce burdening nightmare."

The court found Minnesota v. Clover Leaf Creamery Co. instructive:

There the Minnesota legislature banned the retail sale of milk in plastic nonreturnable, nonrefillable containers because they presented a solid waste management problem, caused energy waste, and depleted natural resources.  Other nonreturnable, nonrefillable containers, such as ones made from paperboard, raised similar concerns but were not banned. . . .

Even though plastic and paperboard nonreturnable, nonrefillable containers caused the same ultimate ills, the Supreme Court . . . held the ban on plastic containers, which still permitted paperboard containers, was consistent with the dormant commerce clause.

Similarly, here "both brick and mortar gambling and Internet gambling pose many of the same threats to citizens' health, welfare, safety, and morals, yet only the latter is banned."


September 27, 2010 in Commerce Clause, Dormant Commerce Clause, Federalism, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Sunday, July 18, 2010

Health Insurance Mandate: "Commerce" or "Tax"?

The Obama administration switched its position on the individual health insurance mandate and now claims that it is a "tax," according to the New York Times in a provocatively titled article Changing Stance, Administration Now Defends Insurance Mandate as a Tax.

The Times reports that the administration is now defending the mandate--perhaps the most controversial piece of the Patient Protection and Affordable Care Act--primarily as a tax, and not primarily as a regulation of commerce, in federal court cases seeking to overturn the Act as unconstitutional.  According to the story, administration officials describe the tax argument as the "linchpin" of their case.  The story suggests that the switch came in response to increasing criticism of the mandate as exceeding Congress's authority under the Commerce Clause--authority that allows Congress to regulate anything that has a substantial effect on interstate commerce.  The article suggests that this "switch," then, is a new (and disingenuous) argument.  (We've covered the Commerce Clause and taxation arguments here, here, here, and here.  We've covered other aspects of the bill here and here.)

Just one problem: The article is wrong.

The administration has consistently defended the mandate in court first as an exercise of Congress's Commerce Clause power and only (far) second as an exercise of its taxing power under the General Welfare Clause.  Take, for example, the Justice Department's brief in Virginia v. Sebelius, the case in the Eastern District of Virginia.  In that brief, the government devotes 15 pages to its thorough and aggressive argument under the Commerce Clause--its primary substantive argument--and a mere 4 pages for its near-after-thought argument on taxation.  Yet the Times article quotes a portion from the tax argument in that very brief as evidence that the administration has changed its stance.

Take, for another example, the Justice Department's brief in Florida v. HHS, the Northern District of Florida case.  In that brief, the government devoted a similar 16 pages to the Commerce Clause--again its primary substantive argument on the mandate--and a mere 3 to its secondary taxation argument.

(Thanks to the ACA Litigation Blog for the briefs.  The ACA Litigation Blog is a new blog dedicated to following the litigation around health care reform.)

In its first brief in these cases, Thomas More Law Center, et al. v. Obama, in the Eastern District of Michigan, the government similarly privileged its Commerce Clause argument over its taxation argument.

The taxation argument was actively in play as early as last fall, even if the government has never (even now) used it as its primary authority in litigation for the mandate.

In short, the government's litigation position seems to have been consistent: The mandate is supported primarily by the Commerce Clause and only secondarily and alternatively by the taxation authority under the General Welfare Clause.

But in the end, does it matter?  As the Times story indicates, Congress went to great lengths in the Act to justify the mandate as an exercise of its Commerce Clause authority, and virtually ignored its taxation authority.  And administration officials have repeatedly claimed that the mandate is not a tax.

But there's no requirement that Congress name the particular authority it uses in its legislation (although that might help the courts uphold it), and there's certainly no requirement that the government's (or any litigant's) public pronouncements about their positions line up with their litigation positions.  And in the end, whether the mandate is "commerce" or a "tax" doesn't really matter to those affected--they still have to comply, or face the penalty.

The only way the administration's public "switch" (if such a switch really exists) might matter is in a government's normative obligation to state publicly what it also states in litigation.  This may be an attractive standard to promote government transparency, publicity, and educated public discourse, but we have never held the government to it. 


July 18, 2010 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (6) | TrackBack (0)

Monday, July 12, 2010

Cornyn, Kagan on Congressional Treaty Power

Among Supreme Court Nominee Elena Kagan's written responses to members of the Senate Judiciary Committee released on Friday was this exchange with Senator Cornyn on congressional power to enact legislation implementing a treaty:

[Question 4] Missouri v. Holland, 252 U.S. 416, 432 (1920), held that "[i]f a treaty is valid there can be no dispute about the validity of a statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government."

[Question 4a.] In your view, can Congress and the President expand or evade the scope of Congress's Article I powers by entering into a treaty requiring an enforcing law that would otherwise be unconstitutional [as exceeding congressional authority under Article I]?

Response: Missouri v. Holland held that Congress may enact a statute implementing a treaty pursuant to its authority under the Necessary and Proper Clause, even if Congress does not otherwise have Article I authority to do so, provided the statute does not violate a constitutional prohibition.

Emphasis added.

The exchange brings to mind debates even today about whether Congress can "exceed its authority" by enacting legislation under the General Welfare Clause--that is, whether Congress can do under the General Welfare Clause what it can't do under, say, the Commerce Clause.

Of course it can.  Madison and Hamilton waged this debate many years ago--Madison for the limited view, Hamilton for the expansive view--and the Court settled it in favor of Hamilton in 1936 in United States v. Butler

The issue for the General Welfare Clause (and also for congressional authority to implement a treaty) is not whether the political branches can "expand or evade the scope of Congress's Article I powers," as Senator Cornyn suggests.  Instead, the General Welfare Clause and the Necessary and Proper Clause (to implement a treaty) are themselves independent congressional powers.  That Congress could not achieve its goals under, say, the Commerce Clause just doesn't matter, because it can achieve them by other valid means. 

It's a separate question, of course, whether Congress should achieve the goals at all.  Senator Cornyn went on to ask about this--with respect to the Gun Free School Zones Act (overturned as exceeding the Commerce Clause in United States v. Lopez), the civil damages provision in the Violence Against Women Act (overturned as exceeding the Commerce Clause and Section 5 of the Fourteenth Amendment in United States v. Morrison), and the individual health insurance mandate in the recent health care reform legislation (yet to reach the Supreme Court). 

Could Congress achieve its policy goals in these areas by enacting a treaty and implementing it through legislation?  Surely, every bit as much as it could under its spending power.

Whether it should is a question for Senator Cornyn, not Nominee Kagan.


July 12, 2010 in Commerce Clause, Congressional Authority, Interpretation, Separation of Powers, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 6, 2010

DOJ Files Complaint Against Arizona SB 1070 Alleging Statute Unconstitutional: Analysis

Azdhometitle4 As anticipated, the Department of Justice has filed a complaint in Arizona federal court seeking a declaration and injunction that Arizona SB 1070, the controversial statute signed into law April 23 regarding immigration is unconstitutional.  The DOJ complaint has three causes of action: the supremacy clause, preemption, and the [dormant] commerce clause.  

With the complaint, the DOJ has filed a motion for preliminary injunction and supporting memorandum [available here].  The DOJ memo concentrates on the preemption argument as the basis for the likelihood to prevail on the merits prong of the preliminary injunction standard.  (We've previously discussed the preemption arguments here).  The DOJ argues different types of preemption, including field and conflict:

In enacting a state policy of “attrition through enforcement,” Arizona’s S.B. 1070 ignores every objective of the federal immigration system, save one: the immediate apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1. Arizona’s one-size-fits-all approach to immigration policy and enforcement undermines the federal government’s ability to balance the variety of objectives inherent in the federal immigration system, including the federal government’s focus on the most dangerous aliens. By requiring local police officers to engage in maximum inquiry and verification (on pain of civil suit) and by providing for the conviction and incarceration of certain foreign nationals in Arizona for their failure to register, for entering or traveling throughout the state using commercial transportation, or for soliciting work, the “balance” struck by S.B. 1070 is not only different from that of the federal government, but it will interfere with the federal government’s ability to administer and enforce the immigration laws in a manner consistent with the aforementioned concerns that are reflected in the INA. Despite the statute’s self serving claim that it “shall be implemented in a manner consistent with federal laws regulating immigration,” S.B. 1070 § 12, the act mandates a conflicting, Arizona-specific immigration policy – “attrition through enforcement” – and prescribes various provisions that implement that policy in conflict with federal priorities. To permit a hodgepodge of state immigration policies, such as the one Arizona has attempted in S.B. 1070, would impermissibly interfere with the federal government’s balance of uniquely national interests and priorities in a number of ways.

DOJ Memo at 23 (emphasis added).  Additionally, the memo argues that the state law interferes with United States foreign relations and foreign affairs.

The memo also highlights specific provisions of SB 1070 that it argues are preempted. The memo argues sections 2 and 6 are preempted because their mandatory requirements for determining immigration status conflict with federal law and priorities: section 2 will result in the harassment of lawfully present aliens and is therefore at odds with congressional objectives and will "burden federal resources and impede federal enforcement and policy priorities;” section 6 extends Arizona’s “warrantless arrest authority to out-of-state ‘removable’ offenses and is preempted because it will lead to the harassment of aliens.”  Section 3, the “complete or carry an alien registration document” provision is preempted because interferes with comprehensive federal alien registration law and “seeks to criminalize unlawful presence and will result in the harassment of aliens.”  Section 4, amending Arizona’s alien smuggling statute is preempted because it conflicts with federal law.  Section 5, the state criminal sanction against unauthorized aliens who solicit or perform work is preempted by the federal employer sanctions scheme, and the “transporting, harboring, or concealing provision” violates preemption and dormant commerce clause principles (the item of commerce in question being the “alien” him or herself). 

This high-profile complaint joins the other lawsuits filed alleging the unconstitutionality of SB1070, including on equal protection grounds.

{Update: Arizona immigration statute partially enjoined; here}


July 6, 2010 in Commerce Clause, Current Affairs, Dormant Commerce Clause, Federalism, Foreign Affairs, Fundamental Rights, News, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Sunday, May 16, 2010

Government Defends Individual Health Insurance Mandate

The Justice Department last week filed its first defense of the new health insurance mandate in federal court.  The government responded to the plaintiffs' motion for a preliminary injunction in Thomas More Law Center, et al. v. Obama in the Eastern District of Michigan, a case filed just after President Obama signed into law the Patient Protection and Affordable Care Act (the health care reform act), which includes the mandate.

Plaintiffs filed their motion and brief on April 5, arguing that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance.  The arguments are by now all too familiar; from the plaintiffs' brief:

The Act does not even pretend to fit within any of the Court's previous Commerce Clause rulings.  The Individual Mandate attaches to a legal resident of the United States who chooses to sit at home and do nothing.  This resident is, quite literally, merely existing.  He or she is neither engaged in economic activity nor in any other activity that would bring him or her within the reach of even a legitimate regulatory scheme. . . .  In this case, we have neither economics nor activities.

. . .

If the Act is understood to fall within Congress' Commerce Clause authority, the federal government will have the absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law, such as taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy, among others.  The term "Nanny State" does not even begin to describe what we will have wrought if in fact the Health Care Reform Act falls within any imaginable governmental authority.  To be sure, George Orwell's 1984 will be just the primer for our new civics.

(Citations, primarily to Wickard v. Filburn, U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich, omitted.)

The government responded that the plaintiffs lacked standing--no actual or imminent injury and no ripeness, because the mandate doesn't go into place until 2014, and the plaintiffs' situations may change between now and then.  On the merits, the government argued both Commerce Clause and Taxing Clause.  As to the activity-inactivity distinction that has attracted so much attention in Commerce Clause arguments, it wrote:

Plaintiffs' claim that individuals who forgo health insurance are not engaged in any economic "activity," is fallacious.  Some individuals make what Congress found is an "economic and financial decision" to try to pay for health care services without reliance on insurance.  Indeed, plaintiffs here concede that they intend to "pay for health care services as [they] need them."  Plaintiffs thus have not opted out of health care; they are not passive bystanders divorced from the health care market.  They have made a choice regarding the method of payment for the services they expect to received, no less "active" than a decision to pay by credit card rather than by check.

The government went on to argue that the mandate is an essential part of the larger health reform package and therefore within Congress's Commerce Clause authority under Raich, and that the mandate also falls under Congress's broad taxing power in the general welfare as a legitimate revenue-raising device notwithstanding its regulatory goal.


May 16, 2010 in Commerce Clause, Congressional Authority, Recent Cases, Taxing Clause | Permalink | Comments (2) | TrackBack (0)

Monday, April 5, 2010

Shapiro Offers to Debate Healthcare Anytime, Anywhere

Ilya Shaprio (Cato Institute) offers to debate the constitutionality of health care reform anytime, anywhere--just pay his travel expenses:

Shaprio claims to make his offer because he's heard that some groups have had a hard time finding anyone to make the constitutional case against health care reform.  This seems surprising--see our coverage of opponents, on constitutional grounds (Tenth Amendment, Commerce Clause, and other grounds), here, here, and here.


April 5, 2010 in Commerce Clause, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

Constitutional Challenge to Health Care Mandate: Complaint

 Within ten minutes of President Obama’s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the constitutionality of the statute. SUDO000Z

The states - - - Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota - - -  contend that the Act “greatly alters the federal-state relationship, to the detriment of the states, with respect to Medicaid programs specifically and healthcare coverage generally” (para 39).  

Count One, entitled “Unconstitutional Exercise of Federal Power and Violation of The Tenth Amendment (Const. Art. I & Amend. X)”  alleges both that the Act exceeds Congressional power under Art I sec 8; the “taxing and Spending Clause”; or “any other provision of the Constitution” (para 56), and that the Act violates the Tenth Amendment.

Count Two, entitled “Violation of Constitutional Prohibition of Unapportioned Capitation or Direct Tax
(Const. Art. I, §§ 2, 9)” alleges that the tax penalty on uninsured persons “constitutes a capitation and a direct tax that is not apportioned among the states.”

Count Three, entitled “Unconstitutional Mandate That All Individuals Have Health Insurance Coverage Or Pay Tax Penalty (Const. Art. I & Amend. X)”  alleges:
The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment (para 65).

The fourth and final count seeks declaratory judgment based on the previous allegations.

For pedagogical purposes, the Complaint could be used as an in class exercise in a Constitutional Law course, perhaps using some of the materials available from the Federalist Society here to write a memo in support of the complaint, as well our previous discussions here and here.  It might also be useful for a Constitutional Litigation seminar to engage in a redrafting of the Complaint or a drafting of an Answer.


March 23, 2010 in Commerce Clause, Congressional Authority, Current Affairs, Federalism, Medical Decisions, News, Supremacy Clause, Teaching Tips, Tenth Amendment | Permalink | Comments (3) | TrackBack (0)

Thursday, January 14, 2010

Sex Crimes Blog on Comstock

Professor Corey Yung (John Marshall, Chicago), editor of the Sex Crimes Blog, has a round-up of commentary on the Comstock oral arguments here and here.  (U.S. v. Comstock, argued at the Supreme Court on Tuesday, tests whether Congress can authorize the indefinite detention of "sexually dangerous" federal prisoners, even beyond their prison term.)  Yung offers his own insightful analysis here and here, with a prediction here.  Our commentary is here.


January 14, 2010 in Commerce Clause, Congressional Authority, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 8, 2010

More on the Constitutionality of Health Care Reform

Simon Lazarus, Public Policy Counsel to the National Senior Law Center, published an Issue Brief with the American Constitution Society last month taking on the various claims that a health insurance mandate (in the Senate version of health care reform) and tax incentives encouraging the purchase of health insurance (in the House version) are unconstitutional.  We've covered the issue here, here, and here.

Here's Lazarus on the claim that requiring health insurance amounts to regulating non-activity--one of the more popular arguments that health care reform exceeds Congress's Commerce Clause powers:

This "inactivity" is empty and verbal gimmickry.  Individuals who go without health insurance--if health insurance is available to them and affordable, a contingency that the legislation goes to great lengths to eliminate--are not "doing nothing."  They are deciding to put off paying for health insurance and for health care--because they believe that they won't need it until some future date, or because they recognize that, one way or the other, through hospital emergency room care or other means, necessary care will be available if serious illness or an accident strikes.

Brief at 8-9.

Lazarus concludes by putting the issue in a larger context:

If, as opponents claim, the burden of mandatory health contributions was--in principle--oppressive and unfair, Medicare, and for that matter Social Security taxes would raise constitutional questions no less if these landmark statutory programs were cast as regulations of interstate commerce.  In fact, of course, since 1937, such questions have never been raised either in the courts or in Congress.  The reason is simple:  most people regard these mandatory contributions--in light of what they expect to receive in exchange--as a bargain not a burden.

Brief at 15 (emphasis in original).


January 8, 2010 in Commerce Clause, Congressional Authority, Due Process (Substantive), News, Takings Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Friday, December 4, 2009

"State Sovereignty" and the Health Insurance Mandate

NPR's Morning Edition this morning reported on state movements to sidestep any health insurance mandate that might come out of the health care overhaul now before Congress.  (We previously reported on these here.)  These are state constitutional and state statutory measures that say that individuals shall not be required to purchase health insurance.

If Congress has authority to enact an individual health insurance mandate, these state measure run up against the Supremacy Clause: They are almost surely unconstitutional, as conflicting directly with the federal requirement.

But advocates of the measures nevertheless claim that they interfere with "state sovereignty."  As one advocate in the last line of this morning's story said, "No Supreme Court has ever been more sympathetic to state sovereignty than the current Court."

Whether that's right or not, it almost surely would not affect the Supremacy Clause analysis (unless the Court were willing to undo well settled Supremacy Clause principles).  So what does it mean?

One possible answer: A mandate's interference with "state sovereignty" means that Congress lacks authority under the Commerce Clause and Necessary and Proper Clause to enact a mandate in the first place.  This interpretation might draw support from U.S. v. Lopez (holding that Congress lacked authority under the Commerce Clause to enact the Gun Free School Zone Act) and U.S. v. Morrison (holding that Congress lacked authority under the Commerce Clause to enact the civil damages provision of the Violence Against Women Act).  The majority in both of those cases referred to the slippery slope that might result if Congress had authority to enact those laws: "Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . . .  Under the[se] theories . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign."  But neither case turned on this slippery slope, and the interference with traditionally state regulated activities alone is surely not enough to render congressional action unconstitutional.  See Gonzales v. Raich (upholding a federal drug possession law).

State sovereignty claims aside, some (including some commentators on this blog) have argued that Congress lacks authority under the Commerce Clause to impose a mandate, because not having health care (the activity regulated) is not a commercial activity.  Stated differently: Congress can restrain or regulate economic activity; but it cannot require economic activity.

This argument makes two mistakes.  First, it distinguishes a restriction (a regulation) with a requirement (as non-regulation), and, relatedly, it distinguishes action (as economic activity) with non-action (as non-economic activity).  It's not at all clear that the courts view "economic activity" this way.  For example, the Eighth Circuit in U.S. v. Howell, 552 F.3d 709 (2009) recently upheld a federal provision requiring former sex offenders to register as sex offenders under the Commerce Clause.  That court rejected the criminal defendant's argument that Congress lacked authority to regulate non-action under the Commerce Clause.  Similarly, the Second Circuit in U.S. v. Sage, 92 F. 3d 101 (1996), upheld a federal law criminalizing the failure to pay past child support obligations.  The Sage court addressed the question squarely:

Sage argues that the Act is not within the Commerce Clause power and thus invalid on its face because it concerns not the sending of money interstate but the failure to send money.

Such reasoning would mean that Congress would have no power to prohibit a monopoly so complete as to thwart all other interstate commerce in a line of trade.  Yet the Sherman Act . . . is within the Commerce Clause power. . . . To accept Sage's reasoning would disable the United States from punishing under the Hobbs Act . . . making it a crime to "obstruct" interstate commerce, someone who successfully prevented the interstate trade by extortion and murder.  There would be no trade to obstruct.

Sage at 105 (citations omitted).  These cases might be distinguished because they only require activity that is already required under state law, or because they require limits to economic activity.  But they--and Howell--also suggest that the courts do not draw the sharp line between restrictions and requirements, actions and non-actions, that this argument assumes.

And with good reason.  In the health care context, an election not to purchase health insurance is every bit an economic activity as an election to purchase.  It's those significant interstate economic costs associated with individuals' elections not to purchase that in some measure sparked the health care debate in the first place.  Not purchasing, in this context, is an economic activity.

But the argument makes a second mistake.  The Supreme Court has never required only "economic activity" as a subject of regulation under the Commerce Clause.  In Lopez, Morrison, and Raich, the Court was quite clear that Congress can regulate activity that has a substantial effect on interstate commerce (in addition to the channels and instrumentalities of interstate commerce).  Decisions not to purchase health insurance, "economic" or not, surely have such a substantial effect--again, it's that effect that's driving much of the movement for reform.

Whatever the merits of the policy arguments against an individual mandate, these Commerce Clause arguments based on "state sovereignty" and lack of economic activity do not render them unconstitutional.


December 4, 2009 in Commerce Clause, Congressional Authority, News, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, November 12, 2009

Cato, Barnett Weigh in on Extended Civil Commitment of "Sexually Dangerous" Persons

The Cato Institute and Professor Randy Barnett (Georgetown) filed an amicus brief in U.S. v. Comstock, the case involving Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248, which authorizes the Attorney General to place in indefinite civil commitment any individual in federal Bureau of Prison custody that the AG designates as "sexually dangerous."

Respondent in the case, Graydon Earl Comstock, challenges the Act as exceeding congressional authority.  The Fourth Circuit overturned the Act; the Eighth Circuit upheld it in U.S. v. Tom.  I previously posted on the case here and here.

The government argues that Congress had authority to enact the provision under the Necessary and Proper Clause alone, and as an incident of its authority to run the federal penal system (itself, claims the government, authorized by a hodgepodge of Article I powers, including the Commerce Clause). 

Cato and Barnett take on this claim, and add a little Tenth Amendment:

The Constitution itself is clear: the Necessary and Proper Clause allows Congress to make laws only "for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States . . . ."

Thus, legislation adopted under the Clause may be justified only by an enumerated power, not by an implied power.  Congress may carry into execution the powers specifically delegated to it, and the Necessary and Proper Clause permits adoption of reasonable means to carry into execution the enumerated power.  But there the power ends.  Indeed, the Tenth Amendment was adopted to ensure that Congress did not rely upon the Clause to expand its powers beyond those enumerated.  As it must, this Court has guarded against the danger perceived at the founding of the Republic: in the 190 years since M'Culloch, this Court has never upheld a statute based on the Necessary and Proper Clause that was not tethered to a specific enumerated power. . . .

Notably, the Government does not and cannot affirmatively argue that the Act is a legitimate exercise of Congress' Commerce Clause power.  Civil commitment involves neither commerce nor interstate activity.

Pp. 4-6 (emphasis in original).


November 12, 2009 in Commerce Clause, Congressional Authority, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

Is an Individual Health Insurance Mandate Constitutional?

Dean Erwin Chemerinsky (Irvine) and David B. Rivkin (Baker & Hostetler) are debating the constitutionality of an individual health insurance mandate as part of the federal healthcare overhaul in the Federalist Society Online Debate Series.  The issue--whether Congress has authority to require individuals to purchase health insurance--has gotten some attention since Rivkin and Lee Casey penned a Washington Post op-ed arguing that Congress lacked authority under the Commerce Clause.  (I critiqued their argument here.)

Here's a flavor:

Chemerinsky:  There is no constitutional problem with Congress requiring that individuals purchase health care or pay a penalty. . . . 

Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce.  Purchasing health insurance is an economic transaction.  Taken cumulatively those who do this, or who don't do it, have a substantial effect on interstate commerce.

RivkinWickard v. Filburn and Gonzales v. Raich do not support [Chemerinsky's] position.  In both of these cases, Congress sought to regulate individuals engaged in traditional agricultural/economic activities, growing wheat and marijuana.  The fact that they did so for personal consumption did not detract from the underlying economic nature of these activities. . . .

Professor Chemerinsky also overlooks the existence of two major cases--United States v. Lopez and United States v. Morrison--in which the Supreme Court, in 5 to 4 decisions, has specifically rejected the notion that Congress can regulate non-commercial behavior merely because, arguably, such behavior can have an impact on Commerce.  The Court's overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious.  This reasoning is unassailable.

Indeed, the vertical separation of powers, under which the federal government possesses limited and enumerated powers, while the States wield general police powers, is the key part of our constitutional architecture. . . .

Professor Chemerinsky's vision of a Commerce Clause on steroids would fundamentally warp our constitutional architecture.  Because every single decision by individual Americans, be it buying health insurance, cars, health club memberships or any other good or service, has some impact on the economy, it could be subject to regulation by Congress.

There's much more; check it out.


November 10, 2009 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (0) | TrackBack (0)