An Open Question


When Jonathan Cohn looks at the legal challenges to the ACA, he doesn’t see judicial restraint:

What bothers me (well, one of the things that bothers me) is that so many critics of the Affordable Care Act act as if it is the individual mandate itself, not their interpretation of the constitution, that represents a radical break with the past. I just don’t see that and neither, apparently, do a lot of other people who follow the law more closely than I do.

This bothers me, too. But I’m also bothered that so many ACA supporters cannot see its critics’ legal arguments as anything other than “a radical break with the past.” Virtually no one is willing to admit that the other side’s position is reasonable. Which is fine. Law, like war, is politics by other means, and all that. It’s just that, in this case, there are reasonable legal arguments on both sides, and I don’t think any of them are a radical assault on the Constitution. (Cohn at least admits it’s possible to make an “honest” argument that the ACA is unconstitutional.)

Striking down the individual mandate will certainly have a radical effect on healthcare reform. But the effect on constitutional law will be modest. It will not sweep away the post-New Deal paradigm of constitutional jurisprudence or “unravel the fabric of modern American government.” It will be a rather small tweak of Commerce Clause doctrine which will affect precisely one statute in the entire U.S. Code and will do so in a way that would be laughably easy to avoid in future legislation by acting explicitly under the taxing power. (Political control of Congress is another matter.)

And on the other hand, if the mandate is upheld under the Commerce Clause and/or Necessary and Proper Clause, the Court will strengthen and clarify a doctrine that is, yes, radically different than that which held sway 100 years ago, but only minutely different from what we’ve had for the last 70 years or so. We will be protected from the dread broccoli mandate just as we are today: by the political process. Nothing in the Constitution prevents Congress from enacting a tax scheme consisting of massive transfers of wealth to broccoli consumers at the expense of those who are “inactive” in the broccoli market.

It’s in the meta-narratives that the debate gets so distorted. But I can and do see why people think the individual mandate is a radical break with history. Because it’s different! That is, understood as an exercise of the power to regulate commerce—rather than the power to tax—the mandate is quite unlike anything else the federal government does. It’s a lot like stuff you’d expect to figure into your taxes and a little bit like draft registration or maybe militia readiness in 1792 or whatever. But constitutional law is highly compartmentalized, and none of those comparisons carries over to the Commerce Clause context. In that context, the federal government has never before imposed affirmative obligations upon people not already engaged in the regulated market or related activity in some way. (It is not a given that, because everyone needs healthcare, they will thereby enter or affect the relevant market in the relevant sense.) More plainly, Congress has never before used its commerce power to make just about everybody do something. Quibble if you want, but my point is not that the mandate is unconstitutional because it’s different, but only that the mandate is in fact different.

Whether or not the individual mandate is a valid exercise of the power to regulate interstate commerce is, in the end, an open question.

Jim Hufford is a lawyer living in the San Francisco Bay area.

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