An NFIB Counterfactual: What if the Obamacare Individual Mandate Were Enforced By Employers?

We cannot simply presume that Congress can indirectly regulate private conduct through the direct regulation of workplace safety.

On Friday, I offered five tentative thoughts about the OSHA vaccine mandate. My final point considered whether this statute, as enforced through the OSHA executive action, would be a "proper" exercise of federal power. Consider a counterfactual to illustrate this constitutional question.

Flash back to 2009. Imagine that Congress chooses a different path for the ACA. Instead of enacting the familiar individual and employer mandates, Congress imposes a very different kind of mandate: all employers with more than 100 employees must require that their employees purchase health insurance that meets certain minimum standards. The federal government offers generous income-adjusted subsidies. There are also hardship exemptions for people whose income falls below a certain level. But if a person does not fall within an exemption, and still chooses not to buy health insurance, then the employer is subject to a $15,000 fine per quarter. The federal government imposes no penalty on the employee. Under the law, employers are required to maintain records of uninsured employees. Federal inspectors will perform routine inspections of those records and the premises, and can issue quarterly fines for each unemployed employees. During congressional hearings,  leading executives and HR professionals predict that businesses would simply terminate employees rather than pay the repeated fines. Millions of Americans would lose their jobs due to the mandate.

I view this hypothetical as a workaround of NFIB's proper analysis. So long as the mandate is enforced by employers, the federal government is not regulating individuals. And Congress has well-established powers to impose fines on businesses that engage in economic activity that substantially affect interstate commerce. Still, this statute would empower Congress to indirectly regulate 100+ million Americans. If Congress drops the threshold to 10 employees, an even greater number of people would fall within the ambit of federal power. And this regulation does not concern mundane workplace activity. Rather, Congress would have imposed a requirement to purchase a commercial product–the precise unprecedented power that Congress lacks.

Would this workaround pass muster under the NFIB proper analysis? Could Congress enact any law it wishes, so long as that mandate is enforced by private parties? Like with all questions about the scope of federal power, the answer turns on identifying a limiting principle. (Feels like 2010, doesn't it?). Consider a few examples.

First, during the pandemic, Congress required employers to mandate that their non-essential employees must be subject to strict lockdown requirements: with narrow exceptions: non-essential employees must stay home to limit the interstate spread of COVID-19. Any employer that fails to keep their workers home is subject to fines. Could Congress directly require people stay home? I am doubtful. But delegating this requirement to employers would make the case much stronger.

Second, take a classic example. Congress requires employers to impose a broccoli mandate. Yes, the federal government will penalize businesses that do not require workers to buy one crown of broccoli per year.  Of course, the law could have income-based subsidies and various hardship exemptions. However, shifting enforcement to private parties radically expands the scope of federal power. So long as an activity can fit within the broad regulation of the commerce power, individuals can be subject to private coercion. The parallels to S.B. 8 should be obvious.

Third, consider an even more S.B. 8-ish example. Congress requires employers to prohibit their workers from keeping a handgun at home. Congress finds that there is a chance those guns may be brought to work, and detrimentally impact interstate commerce. The federal government imposes no direct regulation on employees. The law acts only on businesses. Table the Second Amendment, and issues of third party standing. Would this law be within Congress's federal powers?

All three hypotheticals involve the federal government imposing indirect mandates on individual conduct, as enforced by employers. And all of this conduct occurs off the clock, in the privacy of one's home. Plus, all examples implicate constitutional rights–lockdown in home, buying broccoli, private ownership of handguns. A vaccine mandate likewise implicates rights of bodily autonomy. These areas were traditionally regulated by state, rather than the federal government.

We cannot simply presume that Congress can indirectly regulate private conduct through the direct regulation of workplace safety. The proper analysis from NFIB cannot be so easily defeated through this workaround. Putting aside the nuances of the OSHAct and ETS, there will still be some good, old-fashioned constitutional litigation ahead of us.