The Cost of Doing Nothing

How ObamaCare revived the debate over the use and abuse of the Commerce Clause

James Madison once described the judiciary as "an impenetrable bulwark against every assumption of power in the legislative or executive." Had he lived to see the Supreme Court's sweeping definition of congressional power under the Commerce Clause, he might have revised that statement.

Under Article I, Section 8 of the Constitution, Congress possesses the power "to regulate Commerce with foreign Nations, and among the several States, and with Indian tribes." In the 1942 case Wickard v. Filburn, the Court held that the Commerce Clause allowed Congress to forbid farmer Roscoe Filburn from growing twice the amount of wheat permitted by the Agricultural Adjustment Act and then consuming that extra wheat on his own farm. In 2005, the Court reinforced this decision, holding in Gonzales v. Raich that medical marijuana cultivated and consumed entirely within the state of California still counted as commerce "among the several States" and was thus open to the depredations of the Controlled Substances Act. As Justice Clarence Thomas observed in his Raich dissent, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

If the Democrats in Congress succeed in passing any of the health care bills currently under debate, Justice Thomas may get another chance to set his colleagues straight. Every leading bill features a so-called personal responsibility provision, also known as the "individual mandate," which would require all Americans to either purchase or secure health insurance. And as the Senate version bravely asserts, this requirement is perfectly constitutional thanks to the Commerce Clause: "The individual responsibility requirement…is commercial and economic in nature, and substantially affects interstate commerce."

Is that true? Not according to Georgetown University law professor Randy Barnett, the author of a leading law review article on the original meaning of the Commerce Clause and one of the lead attorneys involved in the Raich case. In a recent paper entitled "Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional," Barnett and co-authors Nathaniel Stewart and Todd Gaziano make the strongest and most compelling case yet that the individual mandate is "unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents."

Turning to the Supreme Court's notoriously broad readings of the Commerce Clause in Wickard and Raich, Barnett finds that each of those cases involved "economic activity" and a "fungible commodity." Failing or refusing to buy health care, however, is, by definition, a non-economic inactivity. And there's certainly nothing fungible about health insurance you don't actually possess. Thus Wickard and Raich do not apply.

Furthermore, despite the permissiveness of those two precedents, the Court has placed genuine limits on Congress' ability to regulate activity that "substantially affects interstate commerce." First, in United States v. Lopez (1995), the Court struck down the Gun-Free School Zone's Act, which had relied on the Commerce Clause to ban the possession of a gun within 1,000 feet of a school. Then, in United States v. Morrison (2000), the Court voided the Violence Against Women Act, which had imposed federal criminal penalties for gender-based violence under the Commerce Clause. In those cases, lawmakers asserted that the economic fallout from non-economic gun violence and non-economic gender-based violence, respectively, "affected" interstate commerce and was thus open to federal regulation. The Court disagreed.

On the other side of the debate, liberal legal scholars who favor health care reform see no constitutional trouble with the individual mandate. Writing in Politico, University of California law professor Erwin Chemerinsky argues, "Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect."

Similarly, Yale University law professor Jack Balkin, writing at the website of The New England Journal of Medicine, claims that "like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people's behavior undermines Congress's regulation—in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won't succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective."

Yet neither Chemerinsky nor Balkin acknowledge the Court's still-active precedents in Lopez and Morrison. More to the point, as Barnett observes, "there is every reason to believe that five Justices of the Supreme Court will be open, and perhaps even eager, to reaffirm the principles of Lopez and Morrison in a case… [not involving] marijuana." He's specifically referring here to Justice Antonin Scalia, who shocked many legal observers by siding with the majority in Raich, where he perhaps allowed his hostility towards illegal drugs to trump his commitment to limited constitutional government. (It's worth noting that the equally conservative Justice Thomas, as quoted above, got Raich right.)

So where does this leave the individual mandate? If passed—and that's now looking like a very big if—there's no question that a legal challenge will quickly follow. Here's hoping the Supreme Court uses that as an opportunity to put Congress back in its constitutional place.

Damon W. Root is an associate editor at Reason magazine.