Most of the Justices Reject the Commerce Clause Defense of the Mandate


In the main dissent from today's Supreme Court ruling upholding the Patient Protection and Affordable Care Act, four justices (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) say the individual health insurance mandate goes beyond anything that has passed muster under the Commerce Clause before:

The striking case of Wickard v.  Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one's own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not  an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

Thomas goes further in a separate dissent, where he reiterates his longstanding position that the "substantial effects" test underlying Wickard "is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases." Quoting himself, he says the test "has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits."

Chief Justice John Roberts, who wrote the majority opinion, agrees with the dissenters that the mandate does not qualify as a regulation of interstate commerce (which is why his argument rests on the tax power instead):

The individual mandate…does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.  Construing the Commerce Clause to permit Congress to regulate individuals precisely  because  they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals donot do an infinite number of things.  In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government's theory—empower Congress to make those decisions for him. 

The other four members of the majority—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—did not join this part of Roberts' opinion, since they have no such reservations about an all-encompassing Commerce Clause. But for what it's worth (not much, given how broadly the authority to regulate interstate commerce has been read so far and given how much can be accomplished under the tax power as it is understood by the Court), a majority of the justices continue to argue that the Commerce Clause is not a blank check.

NEXT: Rep. Justin Amash Reacts to SCOTUS Upholding Obamacare: "The Supreme Court missed an historic opportunity to rein in the federal government"

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  1. The Taxing power in conjunction with the General Welfare clause is a blank check.


  2. The other four members of the majority?Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan?did not join this part of Roberts’ opinion, since they have no such reservations about an all-encompassing Commerce Clause.

    I find this confusing. So is it, then, just one Nazgul’s opinion that that it survives as a tax and not through the mandate?

    1. All Roberts had to do was agree with Kennedy and this shit would have gone down.

  3. In a week that included the decisions on mandatory life sentences, immigration, and “Stolen Valor”, you’d think this would have been the week when SCOTUS grew some balls and took the ACA down to Chinatown, wouldn’t you agree?

  4. Pyrrhic victory is pyrrhic.

  5. Yes, but on my initial reading of the opinion, the commerce clause reasoning is merely dicta, not precedent. Certainly it is strong dicta, but that can easily be ignored in the next case by distinguishing the case on the facts (thus ignoring the principle), as is often done by the Justices when considering dicta. At first glance I was heartened by the commerce clause aspects of the opinion, but now I’m not sure it matters that much. And as the Jacob points out, the commerce clause is already so broad I’m not sure the practical impact of this dicta is very great. It is a silver lining only for those looking for one I think.

    1. Roberts tried to make sure his commerce clause views weren’t dicta.

      Dicta are just judicial asides which don’t affect the outcome of the case.

      Roberts argues that his views on the Commerce Clause *do* affect the outcome. Specifically: Roberts says

      (A) if ACA is not a tax, it would be unconstitutional because of the Commerce Clause argument

      (B) But the Supreme Court, if at all possible, should find a way to hold laws to be constitutional

      (C) If ACA is a tax it’s constitutional

      THEREFORE (D) to make the law constitutional, interpret it as a tax.

      But Roberts also said that if the ACA were constitutional under the Commerce Clause, there would be no need to strain to find it constitutional under the tax power, and in such a case Roberts would say that the ACA was *not* a tax.

      Basically, if Roberts thought ACA were valid as a regulation of Commerce, he would have said it wasn’t a tax, but since calling it a tax is necessary to make the ACA constitutional he’ll call it a tax.

      That reasoning, however strange, seems to me enough to make Roberts’ Commerce Clause views not dicta.

      Add Roberts’ Commerce Clause views to the views of the 4 dissenters, and you get a binding 5-4 victory for at least *some* restraints on the Commerce Power.

      1. Dissent’s don’t elevate dicta to precedent.

        1. I didn’t say they did.

          The lineup is:

          5-4 to uphold this law under the Taxing Clause. (dissenters say it’s not a tax, so the tax clause doesn’t apply)

          5-4 to limit the Commerce power by saying that Congress can’t simply regulate inactivity as a form of commerce. (dissenters say they can in the specific context of health care)

          The justices who dissented on upholding ACA as a tax were in the majority on the Commerce Clause issue. On this point, it was the libs who were in the minority.

    2. I agree with you. This case will have as much influence on future Commerce Clause cases as Lopez did. Which is to say, very little at all.

      The idea that we can sua sponte authorize federal legislation under the taxing power, on the other hand…even if the legislation doesn’t say it’s a tax anywhere within it; that idea is going to be a bit more far reaching, I think.

  6. This case is a good demonstration of why libertarians should not use conservative arguments and rely upon constitutionalism as their sole arguments in politics. Constitutionalism is critically important for the rule of law (both substantively as a limit on state power and to require due process under the law), but it is alone insufficient. Libertarians need to recognize that as great as the US Constitution is, it also includes broad powers through broad language. The libertarian limitation on government authority is a principle of political philosophy which is of a higher order than mere constitutionalism. The argument we must win (within the framework of a constitutional republic, no doubt) is one that must focus on this libertarian principle, not legalistic and conservative arguments about constitutional limits.

    I am not suggesting that all constitutional arguments are unworthy of being made, but too often libertarians seek to end the political principles argument by a legalistic “it isn’t authorized under our constitution” argument, which is qualitatively different and subject to a long history of ambiguity and over-breadth due to the historical compromises made at the constitutional convention.

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