Standing Up For Limits On The Commerce Clause
Over at TNR, Jonathan Chait argues that although an individual mandate to purchase health insurance has long been a respectable position on the right, the conservative movement has now “coalesced around the position that the individual mandate is not merely misguided but actually unconstitutional, a fact conservatives somehow overlooked during the previous three decades.”
The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can do anything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”
This is the intellectual rationale for the hysterical conservative response to the passage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves. But of course, the decision not to purchase health insurance is the very opposite. Those who forgo health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.
Granting that the conservative movement has an opportunistic tendency to contradict itself, I cannot help but observe that Chait has muddied the relevant question: I happen to think that an individual mandate to buy health insurance is a sound policy idea in principle, that its passage is owed to a mix of paternalistic and utilitarian objectives, and that none of that matters when we’re evaluating whether it is permitted under the commerce clause.
Mr. Chait goes on:
Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.
It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.
What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?
If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.
Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.
What I’ve yet to see answered to my satisfaction is Radley Balko’s question:
Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?
If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)
If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place?
I’ll grant that Chait and Kevin Drum offer a devastating critique of some movement conservatives and their incoherence. (Tim Lee does too.) I’d nevertheless like to see them answer Balko. It’s the argument implied in his post that has me eager for more judicial rulings like Judge Hudson’s (and the Rehnquist Court rulings for that matter, though I haven’t any particular aversion to state laws aimed at violence against women or school zones with special protections).
Why is that wrong?
Conor,
Between you, Balko, and Sanchez, all three of my very favorite bloggers have now posed essentially the same question. As it happens, I emailed Radley a response to his post on Tuesday night while mildly drunk, and I figure I may as well go ahead and reproduce it here. Please forgive the wall of text.
Radley asked: “Putting aside what’s codified [in the] Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?”
This is not as straightforward a question as it looks. Certainly, at the time it was adopted, the Constitution put real, substantial restrictions on the powers of the federal government. At that time, there was essentially no such thing as a national economy; hell, the States were each printing their own currencies! “To regulate Commerce among the several States” had a meaning that caused no confusion as one power among the several listed in Article I, section 8. But the scope of interstate commerce is vastly different today than it was in 1789, and I don’t think you even need to get involved in any Balkin-style new school originalism to realize that the Commerce Clause as written totally swallows up a lot of the other enumerated powers in the modern world. Look at the way the nation works now—the essential interchangeability of many of the states in economic terms; radically increased migration between states; extraordinary technological advances in transportation, communications, and manufacturing; even advancements in our understanding of how activity in one state effects activity in another. Given these changes, naturally our conception of what qualifies as “purely local” activity is going to be very different than that of the average 18th-century American.
Given this context, I’m actually a little bit surprised that principled libertarians would pick out the individual mandate as the place to draw the line in this battle. Surely, a stand-alone statute requiring everyone in the country to buy health insurance would be a very questionable exercise of federal power. That seems to be the way this debate has been framed, but that’s not what we’re looking at. This is a complex regulatory scheme aimed at the health insurance industry as a whole, something I (naively) would have expected that even most conservatives would agree is an end quintessentially within the enumerated commerce power. Not only are the insurance companies themselves monstrous (if you’ll forgive the loaded language) interstate corporations of a kind essentially unimaginable at the time of the framing, but regulation of the industry presents precisely the kind of collective action problem that the framers intended the federal government to have the power to fix. When you come right down to it, the point of Section 8 (and to make a gross generalization, the whole reason to move to the Constitution from the Articles of Confederation in the first place) was to enable Congress to attack these types of collective action problems. It’s not the naked Commerce Clause that enables the individual mandate, it’s (assertedly) the Necessary & Proper Clause. Frankly, I’ve been surprised at how little of the argument on this issue has focused on the N&P Clause. Before the fight got underway, I would have predicted that these cases would mostly turn on factual disputes over whether the individual mandate was really “necessary” in order to accomplish (what I thought was) the plainly constitutional goal of regulating the health insurance industry, or else arguments about how much to defer to Congress on that matter.
As to restrictions that the Constitution (minus the Bill of Rights) imposes on the federal government in the present day, note that the argument outlined (in its most skeletal form) above does not require unlimited federal power. It doesn’t necessarily imply that Lopez and Morrison were wrongly decided, nor even that Wickard and Raich were decided correctly. Statutes that horn in on issues that are still legitimately considered “purely local” are beyond the enumerated powers of the federal government. The proper inquiry is whether the authority claimed by Congress is an attempt to regulate interstate commerce (into which term, I assert, the national health insurance industry comfortably fits), or to solve a real collective action problem among the States. Most notably, the “lefty” jurisprudential position I take doesn’t even resolve the specific question of the individual mandate; perhaps that mandate is not truly necessary in order to regulate interstate commerce. However, I do think that where Congress pursues legitimate ends, their choice of means should be entitled to at least a certain amount of deference.
For further reading by more incisive and eloquent minds than my own: Rick Hills argues persuasively that the “action/inaction” distinction results from an unprincipled conflation of federalism and individual rights, while Ilya Somin has written thought-provokingly about whether the “proper” half of “necessary & proper” might actually import some of those individual rights concepts into the enumerated powers, and his co-blogger Orin Kerr has responded on the latter issue. Meanwhile, Andrew Koppelman does a pretty good job of making the basic “lefty” argument in favor of the mandate that I am imperfectly reproducing here.
I’ll close by offering a single specific example in answer to Radley’s follow-up question, in an attempt to prove both my enumerated-powers and my lefty bona fides simultaneously: The government lacks the power to define “marriage,” which is a matter solely within the province of the several States.
— Patrick · Dec 16, 02:09 PM · #
As Patrick notes, this is the same damn thing as Balko and Sanchez. And I refute it thus: there are many things that I think government isn’t allowed to do. Mandating healt care coverage is not one of them. This line of reasoning is pure sophistry.
Now here’s a question for you, Conor, and it seems to me that it’s an essential one: when does it become alright for me to call a spade a spade and admit the bare fact that conservatives and libertarians just don’t want poor people to have health care and will do anything to prevent them from getting it? You are very dedicated to the idea that it’s offensive to say so. But is there literally no threshhold past which I am allowed to point out what is plainly in front of my face? How much ludicrous effort must the right invest in fighting efforts to give health care access to all before I am allowed to say that stopping it is their actual goal? I’ve been waiting for the conservative health care plan for two years now. Crickets.
It’s admirable that you’re dedicated to being polite, but the problem with manners is that they occlude the truth if you aren’t careful. So how long does the admonition that it’s wrong to argue bad faith keep me from pointing out what’s in front of my eyes? Or is the right entitled to say that they support health care reform while doing everything they can to fight it in perpetuity? I think it’s a fair question, at this point.
— Freddie · Dec 16, 02:23 PM · #
A few quick points:
- I haven’t seen any of the critics of the law answer the point that this is form over substance, since it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?
- What about the states? There are no limits under the Constitution to a state’s ability to mandate the purchase of health insurance. Witness the lack of Constitutional challenge to the Massachusetts law. So framing this as a question of individual liberty is just silly. If there’s a question, it’s a question of Federalism: is the mandate in question something that the Federal government can impose, or can it only be imposed by the states. The usual way we’d answer that question is by looking at whether the object of regulation – health insurance – is, in fact, part of interstate commerce, which it very plainly is. The Federal Government mandates all kinds of regulations on all kinds of activities that do not themselves necessarily cross state lines, because those activities are connected to interstate commerce. So if there’s something distinctive about the health care mandate, what is it?
- The only thing distinctive about the health-care mandate is that there’s no way out – you can stop complying with, say, OSHA regulations by shutting down your business, but you can only get out of buying health insurance by dying. But why is that distinction important from the Constitutional perspective? The Constitution doesn’t say Congress can regulate interstate commerce “but only if it leaves a way to avoid any regulation by ceasing to engage in a particular activity.” Again, it feels like sophistry: the regulation would clearly be Constitutional if it said, “anybody who ever plans to use the American health care system in any form needs to comply with this regulation” so that a hypothetical person who will never in his life use said system is exempt. Is that really what the Constitutional argument hangs on?
- As for whether the Constitution has any meaning if there are no restrictions on Federal power: well, the reason we have a Bill of Rights is precisely that the anti-Federalists worried that there was no restriction on Federal power built into the original Constitution. But that doesn’t make the Constitution meaningless, because the Constitution also outlines the separation of powers – what the respective roles of the President, the Congress and the Judiciary are, and how they interact. It is not meaningless that Congress has the power to tax and to regulate interstate commerce; that means the President cannot simply issue edicts. It is not meaningless that Congress has the power to declare war – though we’ve striven mightily to make that provision meaningless. It is not meaningless that it requires Constitutional amendment to change the composition of the Senate from two-senators-per-state to something more proportional, or that it required a Constitutional amendment for Senators to be elected directly by the people rather than appointed by state legislatures. It is not meaningless that the Constitution specifies life tenure for the federal judiciary. I could go on. The implicit assumption that the Constitution’s only possible role is to limit the scope of government is not only wrong, it’s silly – because Constitutions are only pieces of paper. What actually limits government is the existence of opposing forces, and a major function of the separation of powers is to establish such opposing forces within the government itself. The health-care mandate, for example, if it is struck down will be struck down by the courts – courts which are a creation of the Constitution.
— Noah Millman · Dec 16, 03:11 PM · #
If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.
There’s something weird going on in this paragraph. You don’t fear Obamacare. Yet you’re applauding a limit on federal power. Forest, meet trees. It’s just too bizarre. The feds have already made you worse off; you just don’t know it yet. Insurance rates are skyrocketing—even faster than before—and it’s only just begun.
Your cynicism implies that we are on an inexorably downward spiral and that 2000 pages of largely unknown legalese is probably better than whatever came next. That is truly depressing.
Speaking of truly depressing, there’s Freddie. It’s so obvious, is it not, that anyone who can sit at a computer and write about health care so passionately simply cares more about the poor than you and I.
— jd · Dec 16, 03:11 PM · #
because Constitutions are only pieces of paper.
Whoa. There’s a mouthful. Houston, we have a problem.
— jd · Dec 16, 03:14 PM · #
jd: have you read the Soviet Constitution lately? How effective do you think its various guarantees of rights were?
More to the point: have you read the British Constitution?
— Noah Millman · Dec 16, 05:06 PM · #
Perhaps they believed they were only pieces of paper.
— jd · Dec 16, 05:26 PM · #
“What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?”
I think this overstates the significance the Founders attributed to the enumerated powers doctrine. As Yglesias pointed out today, the Bill of Rights was added to the Constitution in large part because the Founders were not in agreement that the constitutional recitation of enumerated powers, standing alone, protected liberty. When liberals look to the Constitution for protections of liberty, they look to the Bill of Rights and the Reconstruction Amendments, and conservatives frequently criticize liberals for reading those protections expansively.
Are there some things that fall outside the commerce clause? Yes, big things. For the most part, family law, wills and estates, land and land use, and probably some other things I’m not thinking about right now.
To turn the question around: What are conservatives concerned that Congress might do with an unchecked Commerce Clause power that is not already prohibited in the Bill of Rights or elsewhere in the Constitution? (I’m guessing that the answer involves pesticide regulation, endangered species, and/or wetlands.)
Incidentally, the fact that conservatives contradict themselves on these issues all the time is not just ironic fun. If the argument is that we should all be adhering to a particular conservative vision of the constitution, then it really matters that that vision is coherent, and not simply ad hoc oppositionism. Kevin Drum has already pointed out that the current issue of NR is both railing against an individual mandate to buy health insurance (in an editorial) and urging a reform to Social Security that involves an individual mandate to buy annuities (in a Manzi piece). Tort reform, another conservative perennial, also doesn’t work under the limited reading of the commerce clause now being urged by conservatives.
— alkali · Dec 16, 06:17 PM · #
“Perhaps they believed they were only pieces of paper.”
Excellent response.
— mike farmer · Dec 16, 08:27 PM · #
Maybe it’s perfectly constitutional and even wise for the American government to enact an individual mandate for healthcare insurance; but maybe it’s only constitutional for the various state governments to do so, not the Feds.
The notion that major problems in the US automatically become the responsibility of Washington, DC seems highly bizarre to me. Particularly in the case of such a complex issue as health reform, state by state experimentation is very useful. If Romneycare is a success, then let New York copy it, or improve upon it; if Romneycare is a disaster, then Pennsylvania can try something different.
— M. Grégoire · Dec 16, 08:42 PM · #
I’m really curious where in Article I, Section 8, are the limits on Congress’ power to “regulate commerce…among the several states…”? It’s a trick question…there aren’t any. Given the broad interpretation that the commerce clause and the necessary and proper clause have historically been given, the answer to Balko and Conor’s question is that there are virtually no constitutional limits on the power of Congress to regulate commerce. Now, the Court could cut back on the necessary and proper clause, but I’m not sure even conservatives really want to go there.
To Conor’s question:
“What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone? “
The answer is that the federal government is an entity of enumerated powers—it’s just that one power is very broad. The Hamiltonians won this argument a long time ago and thankfully they did.
As to checks and balances, they still exist and are in plain sight. Bills need to pass both houses of Congress; the Senate still acts as a check on the democratizing effects of the House; the President still needs to sign legislation before it becomes law. Those are the checks and balances. The system worked.
— Steven Donegal · Dec 16, 11:45 PM · #
This happens to be a bad example.
In fact, changing representation in the senate is one of the few limitations the Constitution sets on its own amendment. From Article V, regarding amending the constitution: “…and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
— ps · Dec 17, 12:56 AM · #
Is there anything they can compel you to do that would be unconstitutional? Is a simple majority in Congress sufficient to force you to do anything they so decide? If there is a line over which the Federal government may not cross, how is it defined?
— steve walsh · Dec 17, 01:36 AM · #
“Constitutions are only pieces of paper”
jd completely misses the point that Noah Millman is making. The freedom and liberty we enjoy as Americans isn’t because certain powers are either granted to or denied to government in the Constitution. Someone wishing to impose a totalitarian government could easily reinterprate or ignore what the Constitution allows (I suspect jd would say they already have) – but only if the people let them.
Noh’s point was neatly summed up in his response, the irony of which was clearly lost on jd. The British have no written constitution – they never have. What they have is liberty and freedom. I suspect every Communist government, as well as Nazi Germany, had written constitutions (whatever they were called) that gauranteed expansive rights and freedoms for their people and limited government – and they had tyranny.
— comknow · Dec 17, 01:46 AM · #
Speaking from the peanut gallery here: jd still got the best of Millman with his response.
— ThomasD · Dec 17, 03:56 AM · #
“Speaking from the peanut gallery here: jd still got the best of Millman with his response.”
So a response that seems clever but reveals the writer’s ignorance is getting the best of Millman? Odd.
— htownmark · Dec 17, 01:44 PM · #
comknow:
No, I didn’t miss the point. I was simply pointing out Noah’s outrageous statement. Note that he hasn’t said anything to clarify his statement. I was hoping for something like: actually, jd, I believe the constitution is written in stone—not paper—and nothing can change it short of an act of God or an act of Congress, and further, I swear to uphold it just like my President and representatives do.
You see, I’m afraid that Noah doesn’t understand that the success of the USA is a combination of the best constitution ever written and an absolute devotion to upholding it.
My fear is based on the fact that the other side in this debate doesn’t seem to understand. They believe that the constitution is a living document, meant merely as guidelines on pieces of paper. If you believe that, then the constitution is merely an obstacle in your way, as our President has actually said.
I will admit that I didn’t know England didn’t have a written constitution. Maybe they should have. Their freedoms and liberties are seriously curtailed. As for the Soviet Union, I’m not sure which is worse, following whatever they had for a constitution—or not following it. Noah’s point there was lost on me.
— jd · Dec 17, 01:55 PM · #
JD, it looks like Noah’s wording hit a hot button for you, but he wasn’t being as disrespectful to the Constitution as you seem to think.
He never said that he thinks our Constitution is worthless, just that any constitution, in itself, is just a piece paper unless people and the government respect it. It is not a pair of stone tablets handed down from On High, with divine enforcement built-in. Without some force to keep governments honest, they can and have treated their constitutions as mere words on paper.
Without our willingness to uphold our Constitution and ensure that our government upholds it, it might as well be random words on rotting paper for all the good it would do. But with our respect and our watchfulness to keep government from going off the rails, our Constitution has real power and true authority.
Even though our great Constitution has changed throughout its lifetime and will no doubt change again in the future, We the People (and only We the People) can make sure that it doesn’t end up as a mockery of its original intent.
Let’s not get so lost in arguing the fine print that we forget the big picture.
— A patriot of no party.
— Patriot1776 · Dec 17, 09:25 PM · #
Patriot:
That is exactly my point; and when you call it just words on paper, excuse me for thinking you might be tempted to disrespect its authority. Unless you are Noah, I haven’t heard him echo your thoughts.
I believe that liberals look at the constitution as just words on paper. They refuse to believe there is an authority bigger than themselves, including the tablets of stone. They don’t see that it’s the combination of the constitution and our willingness to hold to it that has made the US an exception in history.
— jd · Dec 18, 03:46 PM · #
Noah, if you’re still reading, I would argue that federalism has an individual liberty component. If I don’t like the laws in Texas, I can always move to California, albeit at some cost. If I don’t like the laws in the U.S., it’s significantly more costly to change citizenship to a polity more of my taste.
— J Mann · Dec 20, 04:23 PM · #