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 challengers to the health care mandate have filed their Supreme Court brief – the definitive statement of the case against the mandate, drawing on the strongest arguments that have been made against it by advocates and federal judges, and authored by conservative superlawyer Paul Clement. It is astoundingly thin and weak. A standard admonishment to young lawyers is that they should address the very strongest arguments on the other side, instead of substituting weak caricatures of their opponents’ views. Yet the brief does this repeatedly.
As I’ve explained elsewhere, the argument for the mandate’s constitutionality is very simple. Congress has the power, under the Commerce Clause, to regulate insurance, and so to mandate that insurers cover people with preexisting medical conditions. (The brief does not dispute this.) Under the Necessary and Proper Clause, it may choose any convenient means to carry out this end. The mandate is clearly helpful, and may even be absolutely necessary, to Congress’s purpose. Therefore it is constitutional. Full stop.
How does the brief address this argument? By dancing around it. It never squarely articulates the claim it is rebutting. The closest it comes is at pp. 33-34, where it argues that the mandate “is a law for carrying into execution a power that Congress does not have: the power to compel individuals to enter into commerce.” The mandate “is exercised not to effectuate regulation of interstate commerce, but rather to create commerce so that Congress may regulate it.”
This confuses ends with means. The purpose of the health reform law is not to compel anyone to do anything, but to guarantee that those who have been sick in the past have access to health care. The mandate is a means – it has become clear by now, a very unpopular means – for accomplishing that end. Congress only used it because it had to.
If you use this trick of confusing means with end, you can invalidate any federal program you like (or, more precisely, that you don’t like). Chief Justice Marshall, in McCulloch v. Maryland (1819), offered the following reductio ad absurdum of a narrow reading of the Necessary and Proper Clause. Congress has the enumerated power “to establish post offices,” but “[i]t 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.” But let’s sic Clement on him. A law criminalizing mail robbery, Clement can say, is a law for carrying into execution a power that Congress does not have: the power to lock people up for mail robbery. It is exercised not to effectuate the operation of a post office, but rather to imprison robbers, which is not part of mail delivery. If you run ends and means together in this way, you effectively read the Necessary and Proper Clause out of the Constitution and invalidate quite a lot of what the federal government now routinely does.
Now, it has been clear for some time that the most articulate opponents of the mandate (who include such formidable intellects as Richard Epstein, Randy Barnett, and Gary Lawson) have just this in mind. They despise the modern state and want to blow it up. But the Supreme Court has no such revolutionary ambitions. The challenge for the challengers of the law, then, is to come up with a theory that lets them win this case without committing the Court to the end of American civilization as we know it. Clement evidently could not figure out how to do that (other than – here he shows excellent sense – being coy about the implications of his argument). If you accept his brief’s logic, then it is not clear how, say, the Environmental Protection Agency could survive, since there is no enumerated power to keep the country’s air breathable or its water drinkable.
There are some subordinate difficulties. The brief argues that Congress cannot bring commerce into existence: “It could hardly be otherwise, as that limitation is essential to prevent the Commerce Clause from becoming a grant of the very police power that all concede the Constitution withholds from Congress and reserves to the States.” (15) But the brief also has so many citations to United States v. Lopez, the 1995 case that invalidated a federal law banning possession of handguns near schools, that its table of authorities doesn’t try to enumerate them. (Instead of page numbers, the table simply says “passim.”) Lopez itself, however, imposed limits on federal power, even though the law it struck down did not try to call commerce into existence.
There’s more. “There is no question that the individual mandate usurps the States’ police power to protect the health and liberty of their residents.” (38) Here it appears that the federal power to regulate health insurance is called into question after all. Health care is a matter reserved to the states. Suddenly there are constitutional difficulties not only with Obama’s law, but with Medicare, Medicaid, and hundreds of other federal laws.
Congress has no power “to expand its enumerated powers by creating problems in need of extraconstitutional solutions.” (35) The argument here seems to be that the Necessary and Proper Clause cannot be invoked if the problem Congress is trying to address is Congress’s own fault. 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: whose fault is it that all those valuable papers are in one pile, tempting thieves? Why, it’s Congress’s fault for creating post offices! This argument would invalidate every federal statute that assumes a background of existing federal law.