Tag: Commerce Clause

The States Respond to ObamaCare

Today Politico Arena asks:

Do the 13 state attorneys general have a case against ObamaCare?

My response:

Absolutely.  It will be an uphill battle, because modern “constitutional law” is so far removed from the Constitution itself, but a win is not impossible.  There are three main arguments.  (1) Under the Constitution, as properly interpreted, Congress has no power to enact such a plan.  (2) The plan conscripts state governments into carrying out and paying for federal mandates.  And (3) the individual mandate amounts to an unlawful capitation or direct tax.

The first argument will almost certainly lose, because under post-1937 readings of the Commerce Clause, Congress can regulate anything that “affects” interstate commerce, which at some level is everything.  Under modern “constitutional law,” that’s what we’ve come to – under the pressure of FDR’s infamous Court-packing scheme, a Constitution authorizing only limited government has been turned into one that authorizes effectively unlimited government.

The second argument has promise: In New York v. United States (1992) and Printz v. United States (1997) the Court held that the federal government could not dragoon state legislatures or executives into carrying out and paying for federal programs.  Yet that is just what’s at issue here with the “exchanges” that states are required to establish.  To be sure, the states can “opt out,” but as yesterday’s suit argues, with so many people already on the Medicaid rolls, that option is effectively foreclosed.  Indeed, the new bill will force millions more on to the Medicaid rolls, which is one of the main reasons these states, already strapped by Medicaid expenditures, have brought suit.  Florida alone estimates that the added costs will grow from $149 billion in 2014 to $938 billion in 2017 to over one trillion dollars by 2019.

The third argument holds the most promise.  ObamaCare compels individuals to buy insurance from a private company (why stop there? why not cars from GM?), failing which they will be required to pay a tax (fine?).  This is an unprecedented expansion of Congress’s power “to regulate interstate commerce.”  But even if it were to pass the modern Commerce Clause test, the tax should fail because it’s not apportioned among the states in accordance with their population.

Let’s be clear, however.  This suit was brought because the 13 states (and I predict more will follow) see the handwriting on the wall.  ObamaCare will mark the effective end of federalism as we’ve known it, will bankrupt the states, and, because of that – here’s the clincher – is but a  stalking horse for federal single-payer health care in America.  This suit will keep the issue alive until November, when the American people will have a chance to weigh in.

Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power

Today I went to the Court to watch the argument in United States v. Comstock, which I blogged about previously and in which Cato filed an amicus brief.  As I also blogged previously, Cato’s arguments so concerned the government that the solicitor general spent four pages of her reply brief going after them.

At issue is a 2006 federal law that provides for the civil commitment of any federal prisoner after the conclusion of his sentence upon the appropriate official’s certification that the soon-to-be-released prisoner is “sexually dangerous.”  The problem is that, while states have what’s called a “police power” to handle this sort of thing – to appropriately deal with with threats to society from the dangerously insane and so forth – the federal government’s powers are limited to those enumerated in the Constitution.  And I’m sorry, there’s no power to civilly commit people who have committed no further crime beyond those for which they’ve already been duly punished.

The government, having abandoned its Commerce Clause argument – a big loser in the lower courts – relied at the Supreme Court on the Necessary and Proper Clause.  This clause says that Congress shall have the power to “make all laws which shall be necessary and proper for carrying into execution [the specific powers listed in Article I, section 8], and all other powers vested by this Constitution in the government of the United States.”

In other words, we have a government of delegated and enumerated, and therefore limited powers.  As Ryan Lirette put it in National Review Online last week,  ”Congress may not search every corner of our country looking for problems to vanquish.  Instead, Congress must be able to justify each law it passes with a specific congressional authorization.”

The solicitor general contends that civilly committing the sexually dangerous is “necessary and proper” to regulating the federal prison system – which itself is not an enumerated power but ancillary to enforcing federal criminal laws that Congress is appropriately empowered to make.  At the argument, solicitor general Kagan further justified the relevant provision as related to “responsibly” releasing federal prisoners.

I don’t think her “cascading powers” theory of the Necessary and Proper Clause is a winner – for reasons I describe in my recent podcast – and Justice Scalia also wasn’t convinced.  Justice Breyer, however, at one point asked where the Constitution prohibited the federal government from “help[ing] with” a problem it identified (see page 31 of the transcript) and in general was hesitant to find limits to congressional action to solve big policy areas.

Breyer has it all backward: We don’t operate on the premise that the government has full plenary power to do whatever it thinks is best, for the “general welfare,” for “the children,” for “society,” or for any particular group, checked only by specific prohibitions.  Instead, our system of government – our constitutional rule of law – provides for islands of government involvement in a sea of liberty.  It is individual people who can do whatever they want that isn’t prohibited by law, not the government.

And so we’ll see soon enough which vision of the relationship between citizen and state the Supreme Court embraces.  Along with Justice Breyer, Justices Stevens and Ginsburg also were not very sympathetic to the federalism and libertarian arguments ably presented by federal public defender G. Alan Dubois.  Along with Justice Scalia, Justice Alito was (refreshingly) skeptical of undue government power – and one would expect (the silent) Justice Thomas to be in that category as well.  Justice Sotomayor also asked some interesting questions inquiring into the federal government’s ability to hold someone indefinitely – including on the relationship of that power to the Commerce Clause authority underlying most federal exercise of power – so she could go either way.  Finally, the Chief Justice and Justice Kennedy were, uncharacteristically, not all too active – seeming to question both sides equally – so it’s hard to predict how the Court will ultimately rule.

The Constitutionality of the Individual Mandate

Ezra Klein defends an individual healthcare mandate against charges that it’s unconstitutional, and what’s striking to me is that the argument seems awfully wobbly even if you’re on board with a lot of the post–New Deal jurisprudence about the scope of federal power.  Sez Ez:

The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I’ve also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn’t explicitly give the federal government jurisdiction over entryways.

This doesn’t seem like the right level of analysis. Some taxes and regulations are within the ambit of federal powers; that doesn’t mean anything capable of being so described is. Some things not explicitly and specifically mentioned in Article I are nevertheless necessarily implicit in the enumerated powers; that doesn’t mean anything is. Auto insurance seems like a poor analogue because it’s a condition of access to government-maintained roadways. Ezra also mentions Massachusetts’ individual mandate, which seems rather beside the point in a discussion of the scope of Congress’ Article I powers. But bracket that. Even if you think the federal commerce power legitimately extends to legislation like the ADA, there’s intuitively a world of difference between saying that a commercial enterprise providing services to the public must provide them in such-and-such a fashion and insisting that private persons have to engage in a specified type of transaction just by dint of being alive. I don’t think the best reading of the Commerce Clause encompasses either, but it’s not that hard to conceive a reading that extends to the former but not the latter. I stress this just because I don’t think you have to be a libertarian or have a very restrictive view of the legitimate scope of federal power to believe there’s a genuine question here. The real form of the argument here looks an awful lot like: “Look, we’ve stretched commerce…between the several states so absurdly already, why are we even pretending it might be found to exclude anything?”

As it Turns Out, There Are Limits on Congress’s Power

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, “[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,” than the government’s unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit’s rejection of this blatant government overreach.

United States v. Comstock will be argued on January 12.  You can read Cato’s brief here.

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