Monday, December 13, 2010

Virginia v. Sebelius: Judge Hudson & Justice Scalia

Jason Mazzone

Criticism of Judge Hudson’s opinion today in Virginia v. Sebelius has centered on his rejection of the government’s argument that the insurance mandate is a necessary and proper means to effectuate federal regulation of the interstate health care and insurance markets. Andrew Koppelman, writing on this blog, and Orin Kerr, at Volokh Conspiracy, complain that Judge Hudson’s analysis ignores the command of McCulloch v. Maryland that in exercising its enumerated powers, Congress can choose means beyond those the powers themselves provide for—and that Judge Hudson has thereby read the necessary and proper clause out of the Constitution. It would indeed be odd for a federal district court to ignore McCulloch or any other Supreme Court decision. I don’t think this is what Judge Hudson has done. Judge Hudson might well be wrong in his holding. But today's criticisms seem to me to miss the thrust of Judge Hudson's analysis.

In my view, Judge Hudson’s opinion is written for Justice Scalia. Though Judge Hudson doesn’t mention it, his opinion hews closely to Scalia’s concurring opinion in Gonzales v. Raich. There, Scalia provided what I think is a very helpful discussion (more helpful than the majority opinion in Raich did) for why, in light of Lopez and Morrison, Congress could use its commerce clause power to prohibit cultivation and possession of marijuana for personal use. Scalia explains in his opinion that Congress can reach activities that substantially affect interstate commerce—Lopez’s third category—not by using the commerce clause alone but only with the necessary and proper clause. In addition, Scalia says, that same clause allows Congress to regulate intrastate non-economic activities if the regulation of them is a necessary part of a more general regulation of interstate commerce. The statutes at issue in Lopez and Morrison didn’t qualify under this approach because neither statute involved regulation of intrastate activities in connection with federal regulation of interstate commerce. But Congress could in Raich prohibit local cultivation and possession of marijuana as a means of eradicating it from interstate commerce.

Scalia’s opinion in Raich on the scope of the necessary and proper clause refers throughout to the regulation of activity: he uses the word 42 times. Activity is the key to understanding Judge Hudson’s opinion in Virginia v. Sebelius.

Judge Hudson doesn’t deny that Congress has power to regulate the interstate health and insurance markets. He also doesn’t dispute that (consistent with McCulloch) the necessary and proper clause allows Congress to regulate those markets by means that are not themselves regulations of interstate commerce. However, in Judge Hudson’s view, the necessary and proper clause doesn’t allow Congress to regulate inactivity as a means to effectuate a regulation of interstate commerce. On my reading of Judge Hudson's opinion, the commerce clause is a power to regulate an interstate commercial activity, the necessary and proper clause gives Congress leeway to regulate intrastate activities in order to achieve that end, but regulation of inactivity is, categorically, not a reasonable means to attain a legitimate end under the commerce clause. "The constitutional viability of the Minimum Essential Coverage Provision," he says, "turns on whether or not a person's decision to refuse to purchase health care insurance is . . . an activity."

To be sure, this is a novel interpretation of the necessary and proper clause. But it is novel only because no other court has confronted this precise question. And Judge Hudson’s approach seems to me a plausible application of Scalia’s opinion in Raich. “Congress may regulate even noneconomic local activity,” Scalia writes, “if that regulation is a necessary part of a more general regulation of interstate commerce. . . . The relevant question is simply whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power.”

Scalia might, of course, have used the term “activity” throughout his opinion in Raich because the federal law reached the activities of cultivating and possessing marijuana. Judge Hudson might therefore be construing a requirement where Scalia meant none. And a majority of the Supreme Court might reject any distinction in the necessary and proper clause between activity and inactivity—or reject Judge Hudson’s conclusion that not purchasing health insurance can, in light of the myriad ways in which the uninsured participate in the health economy, really be deemed inaction.

Nonetheless, once read in light of Scalia’s concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.

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