Balkinization  

Thursday, March 29, 2012

About that Case

Deborah Pearlstein

The Latin maxim Scalia might have more helpfully invoked is the one the Brits like to call Occam’s Razor – the idea that the simplest explanation is usually the right one. I fear we all (that is, all of us who thought or hoped the Court would recognize this as an easy case) might share some blame for making this mistake. So we should thank folks like President Reagan’s former Solicitor General Charles Fried, who yesterday came more quickly to the point:

“[T]he power of Congress is to regulate interstate commerce.… [H]ealth care is interstate commerce. Is this a regulation of it? Yes. End of story.”

Lest I lose my law professor bona fides by leaving it at that, and/or otherwise disappoint my 1L con law students, maybe better just to recall how our national/ legal conversation drifted so far from this, it would seem, self-evident conclusion, to the contrary one.

The opponents of the ACA had two basic arguments about why the law isn’t an exercise of the power to “regulate commerce.” (1) Because the law is a regulation of health insurance, not health care, and the power to “regulate” doesn’t include the power to make someone buy something they don’t want to buy; (2) If Congress can do this, it has A LOT of power to regulate commerce, indeed, so much power that it’s basically unlimited. And that’s not what the framers had in mind when they gave the federal government some, not all, the power in the world. Let’s take them in turns.

The power to “regulate.” The ACA is a law about the entire health care system and then some, from insurance industry regulations to a requirement that chain restaurants display the caloric content of meals to the imposition of a 10% tax on indoor tanning services. It’s one of the health insurance pieces of the law that’s particularly troubling plaintiffs. But that insurance piece is, as the Court (Scalia included) put it in Lopez and Raich, when they were explaining that various kinds of even non-economic activity (i.e. activity where no one is buying or selling anything) could still be regulated under the Commerce Clause, “an essential part of a larger regulation of economic activity.”

But wait, say the plaintiffs, the failure to buy health insurance isn’t just a non-economic activity, it’s non-economic inactivity; the Court’s never said that’s ok before. Here, it becomes clear that what makes this case complicated is not the complexity of government’s argument in the first instance (on that, see above), but rather the time it takes to list the many reasons how and why plaintiffs’ arguments are wrong. So here are a few of them on the inactivity point: (1) Text. The Constitution gives Congress the power to “regulate.” The dictionaries (that Scalia likes so much) say that word means to “make rules.” The word doesn’t imply anything about whether the rules have to be prohibitions or commands. On the contrary, it implies both are fine. (2) Case law. The Court’s cases about the Commerce Clause all say regulation is ok as long as whatever’s being regulated has a “substantial effect” on interstate commerce. Those cases likewise don’t care (or suggest they care) whether the effect is a result of actions taken (like growing wheat) or actions not taken (like failing to buy wheat on the open market). (3) Existential. What’s the difference between activity and inactivity? Am I sitting right now, or am I not standing? Are the uninsured (negatively) not buying insurance, or are they (affirmatively) self-insuring? Hint: The answer is always both. (4) Factual. This distinction only arises at all if you buy the idea that the law is a regulation of health insurance alone, not the entire health care market, in which everyone participates. The only question is how and when they do. Congress is regulating how and when, not whether. (5) Truthful. Yes, Congress can make people do things they don’t want to do. That is what power is.

The limits. The plaintiffs are right: there must be some limits to Congress’ power. The Constitution wouldn’t have gone to the trouble of listing particular powers if it wanted Congress to have all the power in the world. Thing is, there are plenty of limits on Congress’ Commerce Clause power – before, during and after this case. My blogging colleagues below have done a lovely job on these, and I would quibble only with their erudition. That is to say, they’re quite right, but you don’t need that much insurance market theory to understand why. I’ll just recall a few, from the Supreme Court’s own cases over the years. (1) The rest of the Constitution. Congress can’t do anything that’s otherwise unconstitutional. It can’t pass a law regulating commerce that violates your free speech rights, or religious rights, or your due process rights, or your fundamental liberty interests. I’m pretty sure that’d take care of the broccoli forced-feeding problem all by itself. (2) Rationality. Any law Congress passes to “regulate commerce” has to have some rational relationship to that end. Think that’s no limit at all? I’d love to hear someone advance the argument that everything Congress does is rational. I can imagine irrational laws. This just isn’t one of them.

(3) Elections. It seems somehow quaint in the face of Justice Kennedy’s conception of judicial modesty expressed in oral arguments this week to suggest that The People can limit how much power Congress exercises by voting the members thereof in or out of office. Indeed, the single reason I’ve been able to discern for plaintiffs’ insistence that the selfsame health insurance regulation could be passed under the tax power, but not the commerce power, is that in a democracy, we should call a fish a fish. That is, plaintiffs say, sure Congress has the power to pass this law under its tax power. But it tried to pull a fast one over on the voters by sneaking it in disguised as a regulation of commerce, and only if voters know precisely what Congress is doing can democratic checks be effective. So go back, plaintiffs say, add 3 additional letters to the title of the offending provision (t-a-x), re-enact it, and we’ll call it a day. Thing is, this isn’t the kind of case where it seems like we especially need the Court to check the fairness and openness of the democratic process. This law doesn’t affect some discrete or insular minority; 96% of Americans will see a doctor sometime in the next 5 years. This isn’t some obscure provision attached as a rider to some random funding authorization bill. You’ve had to have been living under a rock, buried in sand, listening to your ipod at full volume for the past 4, if not 20 years, to have missed the debate about this law in this country. The plaintiffs could tell exactly what was in it. They just didn’t like it. Thing is, they lost. The good news for them is, they’ll have another crack at getting rid of the ACA in November, still well before the parts they dislike take effect. This is exactly not the case where democracy has failed. It’s working great. The Court need not worry for a moment about having to beat the voters to the punch.

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