Over at the Volokh Conspiracy, Randy Barnett and Orin Kerr are having another spirited, intelligent, and respectful back-and-forth over Obamacare and the individual mandate. Responding to a comment, Professor Kerr opines that he is concerned that an opinion striking down the individual mandate would be too partisan and it would again fail, like so many decisions before, to articulate a principled limit on the commerce power. In response, Professor Barnett reiterates the “anti-commandeering” principle that Cato has pushed in our briefs written in conjunction with Professor Barnett. The anti-commandeering argument focuses on the constitutional principle that the federal government cannot commandeer state officials to do its bidding. Similarly, Barnett argues, Congress is constitutionally precluded from commandeering the citizens to do its bidding; that is, to force them to purchase health insurance. Kerr responds with skepticism toward whether the anti-commandeering principle is a workable legal doctrine, particularly in the face of many constitutionally authorized instances of “commandeering” (e.g., the draft, paying taxes, registering for the census, etc.).

My thoughts: I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr’s concerns. I would like to add something to Professor Barnett’s argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon’s post here). This is constitutionally significant to the anti-commandeering argument.

Kerr writes that, “Under Randy’s theory, as I understand it, it seems that Congress is actually perfectly free to engage in economic commandeering as long as it does so through something formally called a tax. If economic commandeering is to be recognized as a core constitutional prohibition, it seems surprising that it could be so easily done under the tax power.” I disagree. The Taxing Power was acknowledged by nearly every member of the Constitutional Convention as both necessary and dangerous. Recall that under the Articles of Confederation revenue could only be collected through the voluntary payment of dues by state governments. Many states, if not most states, were severely behind in their payments and a debt crisis was on the horizon. The delegates thus knew that, somehow, the new government would have to be able to directly reach the people without going through the states if they wanted to collect the needed money.

But this was the generation of “no taxation without representation!,” and the fear of improper use of the taxing power was rampant. Thus, the delegates added the Origination Clause to Article I, Section 7 in order to guarantee that “All Bills for raising Revenue” would originate in the House of Representatives.

At that point in the Convention, the “Great Compromise” had been reached. This comprise helped assuage the delegates who threatened to leave over the purely proportional representation system that had been pushed by the Virginians and Pennsylvanians. The small states knew that a proportional representation system would minimize their voice in the new government. They thought of themselves as citizens of their states first and citizens of the “Union” second, much like members of the EU consider themselves now. They insisted that some semblance of this be preserved, that states be allowed a voice as states, and not just in a voice that was congruent with population.

Thus, they reached the “Great Compromise,” which established a bicameral legislature composed of two houses interacting with the constituent members of the country—the people and the states—in different ways. All states would have two senators chosen by the state legislatures, but the House’s membership would be directly tied to the people.

After the compromise had been reached, the discussions centered on which house should have which powers. This became nearly as divisive as the discussions about representation because the question of the scope of power is inexorably intertwined with representative justification. In the end, most Convention delegates insisted that all taxation must begin in the House because, in the words of Elbridge Gerry, “Taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses.” For more, you can read the debates from August 13.

So, what does this all have to do with the mandate? If the federal government is properly understood as resting on dual representative pillars—the people and the states—then either can be commandeered. Although our case law only discusses the impropriety of commandeering state governments, it is fully within a proper understanding of the Constitution that people are equally susceptible to unconstitutional commandeering. It is of no matter that they are commandeered at other times—e.g., jury duty, the draft, etc.—because states are likewise commandeered by the Constitution—e.g., rules on choosing senators, members of Congress, and electors, as well as the prohibitions in Article 1, Section 10. But since, at some fundamental level, commandeering is so repugnant to a limited government empowered by a free people, there has to be some way to determine unconstitutional commandeering.

In order to determine this, I propose that, because we are talking about the people and not the states, we must look to the ways in which commandeering is constitutionally allowed and see if those protections have been avoided in passing the individual mandate. Taxation is a dangerous power, but the Constitution requires that it be above the board so citizens are aware when forced wealth transfers are occurring. For similar reasons, Article 1, Section 9 requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” AsMichael Cannon’s post linked above shows, this type of accounting was intentionally avoided by Congress in passing PPACA.

So, I offer to Professor Kerr this principle of decision in the case: THIS IS NOT OKAY. Specifically, when looking to whether or not the people have been commandeered, we look to whether the protections in the Constitution that prevent commandeering have been avoided. One instance in which this would nearly always be the case: the forced purchase of a product from a private entity.

And although I sympathize with Professor Kerr’s concerns about the workability of a Commerce Clause limiting principle, I echo Professor Barnett in saying that this is how the law works. As I wrote to Professor Chemerinsky, limiting Congress’s commerce power will never be about discovering the limits of power, it will be about articulating and enforcing those limits. In some way this will always be arbitrary, but without an arbitrary line, there will be no limit and thus, in some sense, no Constitution to speak of.