Tag: necessary and proper clause

Cato’s Latest Obamacare Brief

As I noted yesterday, Obamacare is moving towards its inevitable date with the Supreme Court.  Although the pace may be aggravating, attorneys on both sides are strengthening their arguments and clarifying the issues presented.

Cato’s latest brief, filed today in the Eleventh Circuit in support of 26 states and the National Federation of Independent Business, sharpens the position we already expressed in briefs filed in the Fourth Circuit and the Sixth Circuit.  Our focus remains the question of whether the Constitution authorizes Congress to mandate that individuals purchase health insurance or suffer a fine.

The government has subtly shifted its thinking at this stage, however, to argue that the individual mandate does not so much compel “inactive” citizens to act but merely regulates when and how health care is purchased. Everyone will eventually purchase health care, the argument goes, and the mandate requires that people pre-pay for that care so they don’t shift the costs onto others.

We point out how this argument is a spurious misdirection, an attempt to recharacterize the individual mandate in terms that are directly contrary to the purpose and function of the overall statute.  Obamacare explicitly regulates the status of being uninsured—and not just those who seek to shift health care costs to the future or slough them onto taxpayers (indeed, the politically uncomfortable truth is that those most likely to incur health care expenses they cannot pay, the poor, are exempt from the mandate).

We argue that, regardless of the spin that the government places on it, the individual mandate “regulates” inactivity, something that not even modern constitutional doctrine allows.  The status of being uninsured cannot be transformed into economic activity via semantic prestidigitation; no matter how artfully articulated, a decision not to purchase insurance, or to do nothing, or to self-insure, is not a federally regulable action.  The outermost bounds of Congress’s power under the Commerce Clause, as exercised via the Necessary and Proper Clause, reach certain classes of intrastate economic activity that substantially affects interstate commerce.  But Congress cannot reach inactivity even if it purports to act pursuant to a broader regulatory scheme.

Allowing Congress to conscript citizens into economic transactions would not only be unprecedented—as government-friendly the precedent is—but would fundamentally alter the relationship between the sovereign people and their supposed “public servants.”  The individual mandate “commandeers the people” into the federal government’s brave new health care world.

The Eleventh Circuit will hear Florida v. U.S. Dep’t of Health & Human Services in Atlanta on June 8.

Friday Links

Cato’s Latest Obamacare Brief: Congress Cannot ‘Commandeer the People’

A recent poll showed that 22% of Americans believe Obamacare has been repealed and 26% aren’t sure.  Yet here at Cato, we’re all too aware that the massive, unconstitutional, and fundamentally unworkable overhaul of our health care system still looms on the horizon.

While two lower courts have struck down Obamacare in whole or in part, three others have ruled it constitutional, including a D.C. District Court opinion that claimed for the federal government the right to regulate the “mental activity” of decision-making.  As litigation progresses to the appellate level, this latter decision has proven to be more a hindrance to Obamacare’s supporters than a help, its Orwellian pronouncement being hard to ignore while the government downplays the significance of the power Congress is asserting.  Nevertheless, Obamacare’s constitutionality—with a focus on the individual health insurance mandate—remains an open question until ruled upon by the Supreme Court. 

Cato’s latest amicus brief is in the Fourth Circuit, in the case brought by Virginia Attorney General Ken Cuccinelli.  In this case, unlike in the Sixth Circuit (in which we also filed a brief), it is the federal government that appealed an adverse district court decision that struck down the individual mandate.  In our brief, joined by the Competitive Enterprise Institute and Prof. Randy Barnett (the intellectual godfather of the Obamacare legal challenges, and also a Cato senior fellow), we argue that the outermost bounds of existing Commerce Clause jurisprudence prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce.  Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme.  

Allowing Congress to conscript citizens into economic transactions is not only contrary to existing Commerce and Necessary and Proper Clause doctrine—as broad as that doctrine is—but it would fundamentally alter the relationship between the sovereign people and their supposed “public servants.”  The individual mandate “commandeers the people” into Congress’s brave new health care world.  If Obamacare is allowed to stand, the only limit on federal power will be Congress’s own discretion.

The case will be argued before the Fourth Circuit in Richmond on May 10.  Read more from Prof. Barnett on Obamacare here and check out the half-day event we recently held on the legal and economic problems with the law.  Finally, though his name isn’t on our brief because he hasn’t yet become a member of the bar, many thanks to legal associate Trevor Burrus for his work on it.

Not Just Breathing: Now the Feds Can Regulate Thinking

I suppose it’s a metaphysical question: Is it more outrageous/scary to argue that Congress can regulate breathing, as Akhil Amar recently argued (prompting my “Every Breath You Take” parody) or that it can regulate thinking, as the latest federal judge to rule on Obamacare opined

That is, Judge Gladys Kessler, echoing two other district judges who ruled in the government’s favor, found that the decision not to purchase health insurance was itself an action and so reachable by Congress’s power under the Commerce Clause. The activity/inactivity distinction that we Obamacare opponents have been pushing is mere “semantics,” you see.  Well, as Randy Barnett said in an emailed press statement:

This decision makes crystal clear that the government is seeking the dangerous and unprecedented power to regulate the economic “decisions” of all Americans – including the decision to refrain from engaging in economic activity.  If allowed by the Supreme Court, Americans would be reduced from citizens to the subjects of Congress, which would now have the discretionary power to run their lives.

He’s right, unfortunately.  But take a deep breath or breathe a sigh of relief (while both are still legal) because, at the end of the day, this latest ruling adds nothing to the debate except a new appellate court from which we can expect an opinion later this year.  (It also ran the record on the “taxing power” argument – the one so favored by the academics I’ve debate over the past year – to 0-4, including two judges who otherwise ruled for the government.)

See also Ilya Somin’s reaction.

Look, the arguments on both sides are clear: On the one hand, the federal government cannot require people to engage in economic activity under the guise of regulating commerce. On the other, the decision not to act is itself an action – “mental activity”? – that is subject to regulation. The battle lines are drawn, the armies of lawyers ready. The only remaining question is whether the Supreme Court will ultimately find that there are constitutional limits to federal power.

The Necessary & Proper Clause Isn’t a Blank Check

Cato legal associate Trevor Burrus and I have an article about to be published in the Syracuse Law Review that grapples with United States v. Comstock, last term’s big Necessary and Proper Clause case that could have big ramifications on the Obamacare litigation (but probably not, we argue). 

Here’s the abstract:

In United States v. Comstock, the Supreme Court upheld § 4248 of the Adam Walsh Act, which allows for the civil commitment of federal prisoners deemed “sexually dangerous” for an indefinite period after they’ve completed their sentences. The case dealt with that most basic of constitutional questions: Where does Congress find its authority to enact a particular law?

Justice Breyer, writing for the majority, found warrant for § 4248 in Congress’s power “to make all Laws which shall be necessary and proper for carrying into Execution” its other powers. But which of Congress’s enumerated powers does § 4248 execute? And is § 4248 necessary and proper for executing that power? Unfortunately, the Court focused mainly on the second question, arguing that Congress has “broad authority” to enact laws to further its enumerated powers. Moreover, the five-factor “test” Breyer offered asked not whether § 4248 was necessary and proper for executing an enumerated power, but for “a jumble of unenumerated ‘authorities,’” as Justice Thomas put it in a searching dissent joined by Justice Scalia.

Fortunately, Justice Breyer’s opinion was joined in full by only four other justices — with Justices Kennedy and Alito writing separately to emphasize the strict requirements that federal laws invoking the Necessary and Proper Clause must meet (even if those requirements were satisfied here). These concurrences, along with an impracticable majority opinion and a logically powerful dissent, suggest that Comstock may have limited application beyond the four corners of civil commitment law. Most prominently, Comstock seems to have little effect on the ongoing Obamacare litigation.

Read the whole thing.  Also read Ilya Somin’s article on Comstock in last year’s Cato Supreme Court Review.

Responding to Akhil Amar on Obamacare

Yale law professor Akhil Amar, one of the nation’s leading constitutional scholars and a “progressive originalist” of sorts – he joined with Randy Barnett and others on a brief supporting our view of the Privileges or Immunities Clause in the McDonald case – had a fiery op-ed about Judge Vinson’s decision in the Sunday L.A. Times.  More than fiery; I’d say intemperate, uncharacteristically so for the mild-mannered Prof. Amar.

Here’s an excerpt:

There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.

I was all set to respond when I saw that Tim Sandefur had beat me to the punch on PLF’s blog.  Here’s an excerpt of that:

Instead [of offering a limiting principle to federal power if the individual mandate passes constitutional muster], he resorts to the saddest of rhetorical tricks–accusing the judge of being like Roger Taney in Dred Scott. Lawyers should have their own “Godwin’s Law”: whoever is first to accuse the judge of being like Dred Scott loses the argument. Amar starts out by saying his students know more about the Constitution than Judge Vinson, but what I wonder is whether Amar’s students will, like their teacher, use false analogies, set up straw men, ignore their opponents’ arguments, and resort to the equivalent of childish name-calling.

Good on ya, Tim!  Read the whole thingDavid Bernstein and Ilya Somin have similarly chimed in, and similarly cited Tim.

One thing for which I will commend Amar is his adoption of the term “Obamacare.”  I’ve never understood how this is a pejorative (unless said with a sneer, but by that standard anything can be pejorative). The one semi-accurate criticism I’ve heard is that the law was mostly written by Congress, not the White House – for which the president got plenty of heat.  But that just means it would be better to call it Pelosi-Reid-care, which presumably is no more or less pejorative.  In any event, that ship has sailed: Obamacare this abomination (note I didn’t say “Obamination”) will remain.

Cite the Constitutional Authority or the Lack Thereof!

A new House rule requires that every new bill or joint resolution introduced in the House include a statement citing the specific powers in the Constitution granted to Congress to enact the proposed law.  In the absence of such a statement, the clerk of the House will not accept the bill and it will be returned to the sponsor.

This new rule may have two potentially valuable effects:

  • For some time, this rule may have a valuable educational effect, reminding new House members, returning members, and the public that Article 1, Section 8 of the Constitution authorizes only 18 federal powers – far fewer than the powers that the federal government has assumed, especially during the past 75 years.
  • The constitutional citations for House bills that are approved would be part of the legislative record that the Supreme Court may consider in subsequent litigation bearing on the constitutionality of Acts of Congress.

This rule, however, is also likely to have two potentially negative effects:

  • This rule, by limiting new legislation to federal activities for which there is express or implied authority in the Constitution, would severely limit the potential of Congress to exercise legislative authority over the many current federal  activities for which there is no such authority.
  • In the absence of  authority in the Constitution for many types of current federal activities or others that Congress may wish to approve, Congress – like the Supreme Court – is likely to rationalize their judgments by elastic interpretations of the general welfare clause, the interstate commerce clause, or the necessary and proper clause.

An alternative interpretation of this new rule, however, would maintain its potentially valuable effects, maintain the potential for Congress to exercise legislative authority over federal activities for which there is no authority in the Constitution, and avoid the equivocation that is characteristic of statements about the powers of the federal government for which there is no authority in the Constitution: A new bill should be cleared for a vote when accompanied by a statement that identifies either the constitutional authority for the federal activities addressed by the bill or the lack thereof.  In the latter case, a statement such as the following should be sufficient for the House clerk to clear a bill for a vote:

There is no authority in the Constitution for the federal activities addressed by this bill.  For such time as any relevant constitutional issues are not resolved and the measures addressed by this bill remain in force as positive law,  we accept the responsibility to assure that this activity is administered efficiently and fairly and to propose changes that would better serve the American people.

This alternative interpretation of the new rule would increase the opportunity for members of Congress to express their views about the constitutional issues bearing on the powers of the federal government but would maintain their potential to legislate.  It is important to maintain an effective separation of powers within the federal government.  Congress does not have an impressive record as a legislature, but it would be a lousy constitutional court.