Health Care Mandate Unconstitutional?

Randy Barnett over at the Volokh Conspiracy thinks so. He’s written a memo, with Nathaniel Stewart and Todd F. Gaziano, for The Heritage Foundation on that very topic here.

Professor Barnett gives a quick and dirty summary over at the Conspiracy here:

I have co-authored a “legal memorandum” for Heritage entitled “Why the Personal Mandate to Buy Health Insurance is Unconstitutional and Unprecedented.” I do not see a link to it yet, but it may be there and I cannot find it. In this memo, we address three ways of assessing the constitutionality of a mandate to buy health insurance from a private company:

1. First Principles or original meaning. (Natch).
2. Supreme Court precedent (Wickard & Raich).
3. Predicting the Justices (what Orin likes to do).

We conclude that this claim of power is, quite obviously, beyond the original public meaning of the enumerated powers scheme. It is also well beyond any previous Commerce Clause decision by the Supreme Court, including Wickard v. Filburn and Gonzales v. Raich. And finally, we do not think there are five Justices who will want to extend the commerce powers of Congress beyond Raich, especially for a program that may well be very unpopular politically by the time a challenge reaches the Court. Never in its history has the Court affirmed that Congress has a plenary police power, and it is not clear how it could limit a doctrine upholding this claim of power.

I realize this may seem counter-intuitive to many readers, but consider this. Anything that has never been done before is literally unprecedented, which means it lacks any precedent. So the question is, will the Supreme Court want to authorize this new extension of congressional power in light of the fact that it violates the first principles it affirmed in Lopez and Morrison? Or, to the contrary, will it want to take the opportunity reaffirm that these principles still apply, notwithstanding Raich, in a case with no further implications beyond the statute in question? Step right up and place your bets.

Oh yes, and for those who care about constitutional law: Raich involved an “as-applied” challenge wherein the Court refused to carve out a subset (marijuana produced and possessed for medical purposes as authorized by state law) of a larger class of activities (all production, distribution and possession of marijuana) where Congress deemed it essential to include the subclass as part of its larger regulatory scheme. A challenge to the individual health insurance mandate will be a “facial” challenge, as were Lopez (possession of guns within 1000 feet of a school) and Morrison (gender motivated violence), that will take the “class of activities” to be “regulated” as given by the statute to assess whether it is within the power of Congress to reach this class.

So here is the kicker: the “class of activities” is actually the inactivity of not participating in the market for insurance. In other words, it is doing nothing. So five Justices would have to find that Congress may compel a person to enter into an economic transaction under its power to “regulate commerce . . . among the several states.” I suppose the safe money is ALWAYS that the Court will uphold a statute. But even here? Unless the Congress takes seriously its duty to independently consider the constitutionality of its exercise of power (rather than merely predict how the Supreme Court with rule), it now looks like we will see.

I hope and think he’s right, but predicting what Justices will do is always dicey. His last sentence here is key to me. I’ve always taught and believe that Congress gives away too much of the game to the Courts. It seems to pass laws willy-nilly in many cases and then let’s the Court decide the scope of them — or the Executive Branch. Laws should be elegantly written so as to provide reasonable interpretation — not provide loopholes the size of a Mack truck or trip-wire complexity so as to be unreadable and incomprehensible. Does Congress seriously contemplate the Constitutionality of its legislation? Not enough — I won’t say never because I don’t belive that to be true, but this Congress seems to damn the Constitution at every turn.

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