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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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 debate over the constitutionality of mandatory health insurance is a placeholder for two different constitutional visions. Health care reform is only the latest manifestation of the New Deal vision of a society whose members are economically secure and protected from the otherwise brutal effects of market forces. Opponents of the mandate envision a radical revision of constitutional law that severely restricts Congress’s authority: if market forces step on you, you’re on your own. Which vision one adopts is, perhaps, a matter of ultimate value judgment, immune to argument. One can, however, ask whether the radicals’ constitutional vision is internally consistent and hangs together logically.
So Judge Roger Vinson’s recent opinion invalidating the law is revealing. The decision is such a bizarre collection of non sequiturs that reading it should have a sobering effect even on those who share his political vision.
Vinson’s reasoning begins by endorsing the claim that failure to purchase health insurance is “inactivity,” and Congress cannot regulate inactivity. He acknowledges that there is no authority for this distinction, but quotes United States v. Lopez for the proposition that unless the commerce power is somehow limited, it would be “difficult to perceive any limitation on federal power.” If Congress can regulate inactivity, Vinson declared, it “could do almost anything it wanted,” and “we would have a Constitution in name only.” But there’s a big problem with citing Lopez: it imposed limits on federal power, and the law it struck down (a ban on possessing handguns near schools) did not regulate inactivity. Lopez itself shows that Congressional power can be limited without the activity/inactivity distinction. The authority on which Vinson relies completely undermines the point he is trying to make.
Next, he rejects the claim that the mandate is authorized by the clause of the Constitution authorizing Congress to “make all Laws which shall be necessary and proper” to carry out its responsibilities. He acknowledges, and even quotes, Chief Justice Marshall’s declaration in McCulloch v. Maryland (1819) that if “the end be legitimate,” then “all means which are appropriate, which are plainly adapted to that end . . . are constitutional.” And then he admits that, under the settled meaning of the commerce power, which he does not question, “regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions)” is a legitimate end. But, three sentences later, he declares: “The Necessary and Proper Clause cannot be utilized to ‘pass laws for the accomplishment of objects’ that are not within Congress’s enumerated powers.” Has he so quickly forgotten that he admitted that the object was within Congress’s enumerated powers?
The central question in McCulloch was whether Congress had the power to charter the Bank of the United States, the precursor of today’s Federal Reserve. The Constitution does not enumerate any power to create corporations. The Bank’s opponents argued that the “necessary and proper” language permitted Congress only to choose means which were absolutely necessary to carry out those powers. Marshall rejected this reading, which would make the government “incompetent to its great objects.” The federal government must collect and spend revenue throughout the United States, Marshall observed, and so must quickly transfer funds across hundreds of miles. “Is that construction of the constitution to be preferred which would render these operations hazardous, difficult, and expensive?” Without implied powers, Congress’s power “to establish post offices” could not entail the ability to punish those who rob the mail, and might not even entail the power to carry letters from one post office to another. “It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road.”
Judge Vinson notes that the government has “asserted again and again that the individual mandate is absolutely ‘necessary’ and ‘essential’ for the Act to operate as it was intended by Congress. I accept that it is.” (Because the mandate was so necessary to the entire legislative scheme, he declared it nonseverable and invalidated the entire law.) In other words, even if McCulloch had come out the other way, the mandate would be authorized by the necessary and proper clause. But the mandate is nonetheless unconstitutional, because it “falls outside the boundary of Congress’s Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers.” But this is flatly inconsistent with the authority that he just quoted.
A final argument against Congressional power is that the negative consequences that the mandate seeks to prevent are Congress’s own fault. The argument here needs to be quoted in detail:
“[R]ather than being used to implement or facilitate enforcement of the Act's insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or ‘necessary’ the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning.”
If, however, Congress has no power to address negative consequences that follow from its own statutory scheme, then Marshall was wrong about mail robbery after all. Mail robbery is an adverse consequence of Congress’s decision to establish a post office: had it not done that, all those valuable papers would not be gathered together in one place. But, you’ll say, that’s crazy; of course Congress can decide that it’s worth having a post office, even if establishing one creates negative side-effects which then must be addressed. But then of course the same response is available to defend the health care law.
The opinion leaves the impression of having been written by a dazed, confused man who can’t remember what he said even a few sentences earlier. The one earlier decision invalidating the law (two other courts have upheld it), by Judge Henry Hudson, is marginally less embarrassing, because it simply states bald, undefended conclusions without exposing his logic to critical scrutiny. Is this the best that opponents of health care reform can do? Posted
by Andrew Koppelman [link]