an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Minimum Coverage Provision and Constitutional Limits
Opponents of the minimum coverage provision in the Patient Protection and Affordable Care Act argue that if Congress can require most people to obtain a certain level of health insurance coverage or pay a certain amount of money each year, then there is little or nothing left of the constitutional principle of a national government of limited, enumerated powers. Depending on the aggressiveness of the particular opponent, the claim is that upholding the minimum coverage provision would mean either that (1) Congress can impose whatever regulations it wants using its commerce power, or that (2) Congress can impose whatever mandates it wants using its commerce power, or that (3) Congress can impose whatever economic mandates it wants using its commerce power.
In a new paper available here, I argue that each of these claims is false. Specifically, I show that a principled jurist can conclude that the minimum coverage provision is within the scope of federal power while also embracing—or leaving for another day—some or all of the following principles regarding Congress’s use of the Commerce Clause:
(1) Congress may not regulate noneconomic subject matter, whether the regulation is a mandate or not, and whether the subject matter is deemed “inactivity” or “activity.” For example, Congress may not ban or require the possession of firearms in schools or in the home, nor may Congress force people to render aid to stop the commission of ordinary crimes like assault.
(2) Congress may not impose any regulation (including a mandate) that violates constitutional rights, including the right to bodily integrity. For example, Congress may not force people to eat certain foods or exercise a certain amount.
(3) In order to regulate at all, Congress must have a reasonable basis to believe that the regulation will ameliorate a significant problem of collective action among the states. For example, all ordinary crime falls in this category regardless of whether the victim of the crime is a commercial enterprise.
(4) Congress may not impose an economic mandate unless it has a reasonable basis to believe that the regulatory alternatives would be less effective or more coercive. For example, Congress may not require individuals to purchase a product if Congress can accomplish its regulatory objectives in a less coercive way, such as by restricting production of the product or by using tax incentives to encourage purchases.
I endorse the first three of these limits. The fourth—an appropriately restrained judicial inquiry into the coerciveness and efficacy of the regulatory alternatives available to Congress—I do not endorse. But the imposition of such a limit would have a sounder constitutional basis than the interpretive mistake of invalidating the minimum coverage provision on the broad ground that Congress may never regulate “inactivity” using its commerce power, either alone or in combination with the Necessary and Proper Clause. From McCulloch v. Maryland to United States v. Comstock, the Court has understood Congress to possess ample means to effectively pursue its constitutionally enumerated ends. Therefore, any concerns about the coerciveness of regulating “inactivity” should be balanced against the relative efficacy and coerciveness of regulating through other means. Accordingly, I conclude that there is good reason to reject the view of opponents of the ACA that this litigation is analogous to United States v. Lopez, in which opponents of federal power persuaded the Court that if Congress can regulate the possession of guns in schools, then Congress can regulate anything. But I do agree with the apparent premise of critics of the ACA that persuasively applying current doctrine concerning the Commere Clause, the Necessary and Proper Clause, and the tax power likely will not suffice to save the minimimum coverage provision when the merits of the ACA litigation is before the Supreme Court. Rather, the Court must be persuaded that it can uphold the provision without abandoning the principle of a national government of limited, enumerated powers. Posted
by Neil Siegel [link]