Prior to Sunday's vote on health care reform, Nancy Pelosi said that we were "at the door step of history." Mark Steyn counseled caution, reminding us that, on Christmas Eve, we were at the "garden gate of history" but then Scott Brown was elected and "we backed down the front drive of history reversing over the neighbor's dog of history."
I am fairly certain that ObamaCare won't work as advertised, but is it susceptible to constitutional challenge? To continue the Speaker's hackneyed metaphor, are we to have anything other than a quick look around the foyer of history?
In Sunday's Washington Post, Randy Barnett outlined some of the issues surrounding the constitutionality of ObamaCare. I am particularly interested in the status of the individual mandate. It is a standard bit of high school civics that Congress possesses only enumerated powers as opposed to the plenary authority of most state legislatures. The reality is a bit more complicated as courts, over the past seventy-five years have found these enumerated powers to be remarkably protean.
But, as Professor Barnett points out, the individual mandate may test the limits of Congressional power. Take the power to regulate interstate commerce. The commerce power has certainly become capacious. Even lawyers whose last exposure to Constitutional Law was in law school are vaguely familiar with the ways in which the commerce power had been used to reach activity bearing, at best, a weak family resemblance to the transaction of business across state lines. Most recently, in Gonzales v. Raich, the Court held that Congress can prohibit persons from growing and consuming marijuana at home because of its posited impact on interstate traffic in weed.
Still, the individual mandate may be different. Professor Barnett writes that "[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company." It's one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It's quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it.
Some scholars and lawyers prefer to emphasize Congress' authority to tax and spend to promote the general welfare. Jack Balkin, for example, thinks that this makes the case for the constitutionality of the individual mandate "easy." For Professor Balkin, there is no need to construct Rube Goldberg-like scenarios of commercial impact. "The government can make you pay taxes," he says. Because the failure to insure will result in a tax (as opposed, I guess, to a stint in Leavenworth), there is nothing to see here.
Perhaps not. There is certainly case law that, while not mandating that conclusion, provides some substantial support. But it ought not to be that easy. The power to tax is, the power to destroy. While taxes may have a regulatory purpose, there should be some limitation on the ability of Congress to accomplish by taxation is there truly no limitation on Congress' ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person's income because she has failed to do what Congress cannot compel her to do? Does a fine become permissible as long as it is connected through the Internal Revenue Service?
Without getting into the doctrinal ins and outs, this should not - and might not be -as easy as my old law review colleague believes it to be. There may yet be room to argue that Congress' enumerated powers impose some limit on its power to tax, particularly when the tax is imposed in an effort to coerce certain behavior or to penalize a failure to act. Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.
The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.
It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously - and now ironically - thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what - save some other constitutional restriction - it cannot require you to do - or prohibit you from doing.
I appreciate that many people - including most of my colleagues in the legal academy - see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won't.
The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to "get it right."
I am not very comfortable. I am not very confident.
And I don't think I am alone. As the popular response to ObamaCare demonstrates, there is a strong tradition - both in public sentiment and (I think still in constitutional theory)- of structural limitations on federal authority.
Our nation still seems to cling to our longstanding notions regarding the limitation of federal power. Given the Founders rather clear intent on the matter, would it really be surprising to see this theory of the Constitution surface in new ways? Is it is possible that the ongoing transmogrification of Article I may lead to a doctrinal response? If courts can no longer hold Congress to a set of enumerated powers, will they seek to restrain federal authority in other ways? Might we see more rigorous judicial scrutiny of what serves the "general welfare" or what is "necessary and proper."
Sounds like Lochner? There is, after all, nothing new under the sun. It is not what I would want, but could it be what we get?
Cross posted at PrawfsBlawg, Shark and Shephed and the Marquette University Law School Faculty Blog