Balkinization  

Tuesday, December 14, 2010

Can’t think of another one

Andrew Koppelman

My Northwestern Law colleague Steven Lubet has offered in an email an elegant summary of the constitutional claim against the federal health insurance mandate: “The scholarly argument against the mandate pretty much runs this way: (1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” This seems to be the source of the novel idea that Congress can regulate activity, but not inactivity, under the necessary and proper clause. (See, for example, Jonathan Adler’s defense of the ruling on the Volokh Conspiracy blog.)

The fundamental problem with Judge Hudson’s claim that Congress is barred from regulating inactivity, even when this is a means to a permissible Congressional end, is that it proposes to limit federal powers with no regard for the purposes for which those powers are being used. The proper response to “I can’t think of another one” is to think of another one.

It’s actually very easy to think of other ones. There’s the one rejected in McCulloch: Congress can only choose means that are ABSOLUTELY necessary to the permitted end. Or here are a few others: Congress cannot enact any legislation that requires the use of instrumentalities that begin with the letter J. Congress cannot enact any legislation that calls for enforcement on Tuesdays. Congress cannot choose any means that weighs more than 346 pounds. All of these would drive back the specter of unlimited Congressional power. The only problem with them is that they are silly and have nothing to do with the underlying reasons for wanting to have limited but effective federal power in the first place. The activity/inactivity distinction has the same problem.

As it happens, the framers thought of one that is more sensible than any of these.

Notice how far the Virginia court’s approach is from the basic concerns that generated the Constitution in the first place. The framers’ most important decision was to replace the weak Articles of Confederation with a central government strong enough to address common problems. According to those who claim that the law is unconstitutional, however, the problem of preexisting conditions can’t be solved at all. A regime in which huge national problems can’t be solved by anyone is precisely what the framers were trying to get rid of.

The framers did envision limits to Congressional power. The mandate respects those limits.

At Philadelphia in 1787, the Convention resolved that Congress could “legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” This was then translated by the Committee of Detail into the present enumeration of powers in Article I, which was accepted as a functional equivalent by the Convention without much discussion. It includes the commerce and “necessary and proper” provisions.

Did the Committee of Detail botch its job, limiting Congressional power more than the Convention intended, and creating a regime in which Congress could not legislate in cases the separate states were incompetent to address? Did the Convention not notice the radical change? No. This language was accepted without objection for good reasons. In an important recent study, Jack Balkin shows that the word “commerce” at the time of the framing referred to all interaction between people, and so “the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state.”

Once upon a time, more sober Republicans advocated a similar understanding of the commerce power. See, e.g., Steven G. Calabresi, “A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez, 94 Mich. L. Rev. 752 (1995).

If health care markets involve such effects or problems, then the mandate presents a very easy case. This is not a recipe for unlimited power: grandstanding statutes that horn in on matters that are purely local, such as the federal ban on possession of handguns near schools that the Supreme Court struck down in 1995, exceeds the commerce power. But the national health care insurance market is not a purely local matter.

One thing that the framers did not anticipate was the spectacular advances of the past 200 years in our capacity to treat disease, prolong life, and ameliorate congenital illness. Many of these innovations are expensive. So with modern medicine comes a new kind of moral horror: the patient with a treatable disease who cannot afford to pay for the treatment.

The reform of the American health care system to ensure that no one would be uninsurable or bankrupted by illness was too big a task for the states to address individually. Any state that required insurers to accept patients with preexisting conditions would attract people with health problems while raising everyone’s insurance costs. This would create an incentive for younger and healthier people to move elsewhere, where they can avoid paying for health insurance. It is thus unsurprising that only one state, Massachusetts, attempted such a reform. The collective action problems mean that most states cannot reform health insurance even if they all would prefer to. It was a matter in which the states were separately incompetent. It was precisely the kind of problem that the framers intended the Federal government to be able to address. And if Congress can address it, the argument for allowing it a choice of means is the familiar one from McCulloch, which, as I’ve said, ought to dispose of these constitutional claims easily.

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