August 16, 2011 4:00PM

‘The Constitution Requires Judicial Engagement, Not Judicial Abdication,’ Writes the 11th Circuit, and Then Leads by Example

On Friday, when the 11th Circuit struck down the individual mandate portion of ObamaCare, a trip to the Supreme Court became all but assured. Previously, although Supreme Court review was highly probable even if a circuit split didn’t develop, there was still an outside chance that the Court would deny review if all circuit courts upheld the law. Now, the Court is essentially obliged to take the case. This is reason enough to be happy about the decision.

As I work my way through the opinion, I become even happier. The opinion is not only exhaustive, it is convincing. If Congress oversteps the outer limits of its power, the court explains, then “the Constitution requires judicial engagement, not judicial abdication.” Thus, we are given over 200 pages of “judicial engagement”: the law is thoroughly explained, the Supreme Court precedents are summarized, and every major counter-argument is addressed. Moreover, the opinion adds nuance to certain arguments that were either not discussed in the briefs or discussed in a subtly different way. I will highlight some of those nuances below.

The opinion describes “two broad limitations on congressional power under the Commerce Clause.” The first is an “accommod[ation] of the Constitution’s federalist structure” that “preserve[s] ‘a distinction between what is truly national and what is truly local.’” The second is that courts should “not interpret the Commerce Clause in a way that would grant to Congress a general police power, ‘which the Founders denied the National Government and reposed in the States.’”

Both of these limitations are indisputable aspects of the existing case law. They are also too often ignored. By enumerating these limitations, the 11th Circuit opinion makes them even more explicit, almost turning them into factors of a legal test. And this is the right way to conceive of them. Those of us who oppose the mandate have constantly reiterated that, if this is allowed, there is nothing left that Congress may not do. Those who support the mandate have either pushed back against this characterization and argued that “health care is special” (in other words, “just this once, we swear”), or they have accepted the new scope of congressional power with a shrug, arguing that existing Supreme Court cases validate the individual mandate, even if this gives Congress unlimited power.

Friday’s opinion unequivocally asserts that such a result is unacceptable. If the current tests of congressional power under the Commerce Clause—specifically the “substantial effects” test articulated in Wickard v. Filburn—are so broad that there is no limitation other than the whims of Congress, then it is time for the Supreme Court to explain whether this constitutionally perverse result is, in fact, where we now stand. Otherwise, the 11th Circuit is obliged to uphold the original principles of the Constitution—that Congress’s powers are “few and defined”—against an unprecedented law that would undermine this founding tenet.

Having established this framework, most of the rest of the opinion concerns itself with whether the individual mandate satisfies this constraint, looking “not only to the action itself but also its implications for our constitutional structure.” And the court does not forget that “while these structural limitations are often discussed in terms of federalism, their ultimate goal is the protection of individual liberty.”

Focusing on the overall constitutional structure, the court then downplays the usefulness of the “activity/inactivity” distinction that has been so much a part of both the nationwide discussion of ObamaCare and Cato’s briefs. “Simply put,” the court writes, “the individual mandate cannot be neatly classified under either the ‘economic activity’ or ‘noneconomic activity’ headings.” Instead, the court is more concerned with “(1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far reaching implications for our federalist structure.”

The court observes that “economic mandates such as the one contained in the Act are so unprecedented…that the government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses their constitutionality.” This fact is not just historically interesting, it is crucial to understanding the limits Congress’s powers. The power to compel economic transactions could hardly be more attractive to a Congress that already engages in numerous attempts to control and manage the marketplace. But “[e]ven in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle."

Finally, in perhaps my favorite part of the opinion, the judges address the so-called “essential to a broader regulatory scheme” argument that has been pushed heavily by government. In his concurrence in Gonzalez v. Raich, Justice Scalia wrote that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.” Thus, the government has argued that, even if the individual mandate regulates a nonecomomic inactivity that is wholly local in nature, Congress can assert power over those passive individuals via a broad regulation of interstate commerce.

If we keep in mind the second “first principle” that the court listed at the outset—that any ruling that imbues Congress with unlimited “police powers” is unacceptable under our Constitution—then this argument is essentially indistinguishable from the government’s other arguments. The court puts this very clearly:

We first note the truism that the mere placement of a particular regulation in a broader regulatory scheme does not, ipso facto, somehow render that regulation essential to that scheme. It would be nonsensical to suggest that, in announcing its “larger regulatory scheme” doctrine, the Supreme Court gave Congress carte blanche to enact unconstitutional regulations so long as such enactments were part of a broader, comprehensive regulatory scheme. We do not construe the Supreme Court’s “larger regulatory scheme” doctrine as a magic words test, where Congress’s statement that a regulation is “essential” thereby immunizes its enactment from constitutional inquiry. Such a reading would eviscerate the Constitution’s enumeration of powers and vest Congress with a general police power.

The court then makes a nuanced distinction, focusing its analysis on the word “essential” rather than the words “broader regulatory scheme.” The question is whether the control of the intrastate activity is “essential or appropriate to protect that commerce from burdens and obstructions,” and whether those intrastate activities “in a substantial way interfere with or obstruct the exercise of the granted power [i.e. the power to regulate commerce].” When analyzed in this way, the court rightly concludes that “an individual’s uninsured status in no way interferes with Congress’s ability regulate insurance companies.”

There are many other wonderful passages throughout this lengthy and thorough decision. The 100-page dissent, even if thoroughly wrong-headed, is also worthy of respect. If you’ve been following Cato’s involvement in ObamaCare, then I highly suggest reading full opinion, or at least the juicy parts.