Friday, June 29, 2012

Conservative justices deny Congress a power that Congress doesn't want

[Reposted, with new post-mortem comments from Randy Barnett, chief architect of the case against the mandate.]

The first really substantive part of the "syllabus" or executive summary of the Supreme Court decision upholding the individual mandate and the ACA looked like Armageddon for the Administration:
2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30....

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clausewould give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.
That is a straight exposition of the plaintiffs' core argument.  Congress cannot create commerce; Congress cannot regulate inactivity; Congress cannot compel commerce. It's a miracle that Roberts turned around and upheld the mandate as an exercise of Congress's taxing power.  But hasn't this decision dealt a blow to Congress's power to regulate commerce?  Does it kick off a rollback of the series of decisions in Roosevelt's second term that expanded that power?

Probably not. Congress's right to compel purchases is a conservative worry, not a liberal one. Verrilli's core "limiting principle" was essentially that insurance is unique (because you never know when you'll need the benefits), and health insurance a singularity within that singularity (because if you lack it, your fellow citizens will ultimately foot much of the bill).  And he meant it!

In his reply brief, Verrilli identified democratic accountability as the ultimate limiting principle that would confine the purchase mandate to health insurance:
There is no reason to think that a democratically accountable Congress would ever exercise a power to compel the purchases respondents conjure up, much less that doing so would be "highly attractive," States Br. 23 (quoting Printz, 521 U.S. at 905). Quite the contrary. Respondents acknowledge that States do have the power to enact purchase mandates (id. at 17) , but they identify no example of any State ever having compelled its citizens to buy cars, agricultural products, gym memberships, or any other consumer product. That is surely because the power is not an"attractive" one, and would be used only when a legislature believes it is necessary to address a problem of sufficient importance tow arrant any political accountability consequences that may ensue--as States have done in imposing insurance requirements (Gov't Br. 36-37) (p. 18).
All together, progressives: no more purchase mandates for us!  No broccoli, no health clubs, no burial insurance. Scared yet?

UPDATE, 1:47: Randy Barnett, whose argument against the constitutionality of the mandate under the Commerce Clause Roberts echoed virtually in toto, asserts that the ruling limits Congress's powers:
Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power:  “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”  Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power....

The New Federalism was attacked precisely because it offered a different vision of the so-called “New Deal Settlement”: although the Court acquiesced to the constitutionality of New Deal-style regulations, when Congress goes beyond this already expansive reading of its powers, the Court will meet any further expansion with skepticism. It will continue to insist on some judicially- enforceable limit on federal power.  Congress cannot be the sole judge of the scope of its own powers.  Today a majority of the Roberts Court reaffirmed this vision.
Vision, yes. But Barnett doesn't enumerate just how this ruling would crimp any power that Congress wants to exercise.

UPDATE, 4:20: Justice Ginsburg, in her partial dissent, echoes the Verrilli brief in asserting that further purchase mandates are unlikely:
Supplementing these legal restraints is a formidable check on congressional power: the democratic process. As the controversy surrounding the passage of the Affordable Care Act attests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so.
 H/T to Scott Lemieux for this, who clips various highlights of Ginsburg's "delightful, subtle skewering of Scalia's hackery" -- including these further lampoons of the notion that Congress would go on a mandates binge:
Maintaining that the uninsured are not active in the health-care market, The Chief Justice draws an analogy to the car market. An individual “is not ‘active in the car market,’ ” The Chief Justice observes, simply because he or she may someday buy a car. The analogy is inapt. The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price. Upholding the minimum coverage provision on the ground that all are participants or will be participants in the health-care market would therefore carry no implication that Congress may justify under the Commerce Clause a mandate to buy other products and services.
Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet. Such “pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and Morrison.
UPDATE, 6/29: Randy Barnett, chief architect of the case against the mandate, takes a victory-manque lap:
“Congress can’t do whatever it wants,” he said. “Under this ruling, Congress can’t put you in jail for violating a future economic mandate. This holding stands for that proposition. Congress also can’t coerce states by withholding all existing Medicaid funding unless they agree to new coverage. That’s a constraint the Court has never enforced before. And the Necessary and Proper Clause cannot be used to salvage these laws. And that’s a ruling we haven’t had before.”
See Justice Ginsburg above, Mr. Barnett.

More seriously, former Acting Solicitor General Neal Katyal worries that the Court's invalidation of Congress's power to enforce its expanded Medicaid mandate.

1 comment:

  1. Excellent and cogent analysis. I guess Part III.A of the decision restricts Congress from imposing a mandate to transact on an individual not already in the applicable market, enforceable through direct criminal penalties. You can count the number of Federal laws that have been proposed. much less passed, on that basis on one hand, with most of the fingers missing. Even ACA did not do that -- it offers a choice to the uninsured who can afford insurance but choose not to get it: Transact or pay a 2.5% tax penalty for not doing it. So one could fairly conclude that Roberts found that any Congressionally approved mandate that is enforceable through a reasonable tax penalty is constitutional. And he also repeatedly conceded Congress's power to regulate existing markets of every kind and nature. EPA, OSHA, SEC, you name it, they can regulate existing markets till the cows come home. So yeah, a very conservative majority recognized a theoretical limit on Congressional Power, but nobody was really debating that.