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On November 8, 1994, the Supreme Court heard oral arguments in United States v. Lopez. At issue was whether the Commerce Clause allowed Congress to forbid the possession of a gun within 1,000 feet of a school. Unlike the federal price-rigging scheme upheld in Wickard, the Gun Free School Zones Act challenged in Lopez had no direct connection to economic activity, whether local or national. Instead the government claimed that gun violence, taken in the aggregate, undermined the nation’s educational system, which in turn substantially affected the U.S. economy.
“When we saw that case coming up from the 5th Circuit, you can imagine how excited we were,” says Roger Pilon, an influential legal thinker who directs the Cato Institute’s Center for Constitutional Studies. Cato commissioned a paper by University of Tennessee law professor Glenn Harlan Reynolds (better known today as the proprietor of the popular political blog Instapundit.com), who marshaled impressive legal and historical evidence to explain why “Lopez is not about gun control or even about federal-state relations but about whether the Court is ready to hold Congress to its constitutional limits.”
The evidence cited by Reynolds included a groundbreaking 1987 Virginia Law Review article by the libertarian legal scholar Richard Epstein, a law professor at the University of Chicago. “The expansive construction of the clause by the New Deal Supreme Court is wrong,” Epstein concluded in “The Proper Scope of the Commerce Clause.” Based on a careful analysis of numerous founding-era sources, including the text and structure of the Constitution itself, Epstein’s argument rang out like a constitutional call to arms. When Lopez hit the Supreme Court in 1994, Pilon and his colleagues at Cato were ready to heed that call.
“Six weeks before oral argument in the case,” Pilon told me, “we sent copies [of Reynolds’ study] to each justice and to each of their clerks.” It did the trick. Not only did many of the justices voice skepticism about the government’s claims during oral arguments, but several justices adopted the Cato study’s main points as their own. “Is the simple possession of something at or near a school ‘commerce’ at all?” Justice Sandra Day O’Connor asked Solicitor General Drew Days. “Is it?” When Days responded that he thought it was, O’Connor shot back, “I would have thought that it wasn’t, and I would have thought that it, moreover, is not interstate.”
Five months later, the Court nullified the law. It was the first time since the New Deal that a federal regulation had been struck down for exceeding the scope of the Commerce Clause. “We start with first principles,” Chief Justice William Rehnquist wrote for the majority. “To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.…This we are unwilling to do.”
Five years later, in United States v. Morrison, the Court extended this line of reasoning to void a provision of the Violence Against Women Act that created a federal cause of action for victims of gender-motivated crimes. The government’s argument in that case was essentially the same as its argument in Lopez: that violence against women ultimately has an adverse effect on the national economy. In both cases, the Court ruled that the Commerce Clause is not broad enough to reach noneconomic local activity. Despite the Court’s 2005 ruling in Raich—which took Wickard’s “substantial effects” logic a step further, applying it to someone who was not even a farmer—the limits on congressional power articulated in Lopez and Morrison remained in force.
‘Unprecedented and Unconstitutional’
The relationship between Lopez, Morrison, and Raich is tricky, and perhaps no lawyer in America understands it better than Georgetown University law professor Randy Barnett, author of the influential libertarian legal treatise Restoring the Lost Constitution. Barnett was the losing lead attorney in Raich, and he has been pondering its implications ever since.
When Raich was decided, Barnett says, “it was my belief that there would never be another Commerce Clause case,” because the Court’s interpretation seemed as expansive as it could possibly get. But Congress and the White House surprised him in 2009 when they settled on the idea of forcing every American to buy health insurance from a private company. “It turns out they found something new that they hadn’t ever done before,” he says. “And the very fact that it’s new means it’s subject to question. If they were just sticking with it, just trying to regulate interstate activity the way they were before, we wouldn’t be able to stop them.”
In both Lopez and Morrison, Congress sought to regulate noneconomic activities by citing their aggregate impact on interstate commerce. But the Supreme Court refused to “pile inference upon inference,” following the hypothesized chain of effects from gun possession or rape to “commerce…among the several states.” As the Court held in Morrison, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” Raich continued this trend, with the Court deeming the act of growing your own marijuana to be economic.
Now consider the individual mandate. The failure to buy health insurance is not even an activity, let alone an economic one. Because the Supreme Court has never said Congress may regulate inactivity, Barnett and his allies argued, the individual mandate violates the Court’s precedents as well as the long-lost original meaning of the Commerce Clause. For federal judges who are interested in placing some limits on congressional power but who are nevertheless bound by the Supreme Court’s expansive reading of the Commerce Clause, the distinction between activity and inactivity promised to be an attractive legal argument.
Barnett, along with two co-authors, spelled out this argument in a 2009 Heritage Foundation paper titled “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional.” Heritage unveiled the paper at a December 9, 2009, event featuring a debate between Barnett and other legal experts on the mandate’s constitutionality. Also present was Sen. Orrin Hatch (R-Utah), who delivered a well-received keynote speech. Later that month, Hatch and other Senate Republicans raised a point of constitutional order against the PPACA, which was still being debated in Congress.
Barnett did not formally join the legal challenge until roughly a year later, when he was retained as counsel by the National Federation of Independent Business (which had joined Florida’s suit). Until that point, he says, “I was attempting to influence the discourse solely from the outside of the case, through blogging and writing.” It worked. If you read Barnett’s 2009 Heritage paper today, you will find virtually every major argument that has been deployed against the individual mandate through every stage of litigation, from Florida’s original March 2010 lawsuit to the March 2012 oral arguments at the Supreme Court.
Setting the Stage
The challenge kicked off officially on March 23, 2010, when Florida, joined by 12 other states, and Virginia, acting alone, filed separate federal lawsuits charging the PPACA with exceeding congressional authority and undermining the principles of federalism. As the Florida complaint put it, “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage.” Several other challenges soon followed, including suits by the Thomas More Law Center, a public interest law firm focusing on religious freedom, and Liberty University, the conservative Christian college founded by the late Jerry Falwell.