By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Professor Schwinn is also co-editor of the Constitutional Law Prof Blog.
There's a lot to criticize in Federal District Court Judge Henry Hudson's ruling earlier this week allowing Virginia's case challenging the individual health insurance mandate to move forward. For example, the ruling gave credence to the recently enacted Virginia Health Care Freedom Act, the state's effort to nullify the federal mandate through legislation that purports to exempt Virginians. The Act was a thinly disguised attempt to legislate standing for the state-to give Virginia an interest in defending its own state laws. But Virginia has no real interest other than making a political statement. Its manufactured standing mocks Article III's case-and-controversy requirement and risks inspiring other states to fabricate standing simply by enacting legislation anytime a majority in a state legislature objects to a federal law.
Then there's the ruling's apparent conflation of Congress's Commerce Clause authority and its taxing authority under the General Welfare Clause. The ruling runs uncomfortably close to saying that congressional authority to tax is cabined by its authority to regulate interstate commerce - a position flatly rejected by the Supreme Court since 1936. In fact the ruling says almost nothing about Congress's taxing power; instead, it falls back on the Commerce Clause, suggesting, with little analysis, that the mandate looks more like a "penalty" (enacted under the Commerce Clause) than a "tax" (enacted under the General Welfare Clause).
These and other similar concerns with the ruling are troubling, but they come at only a preliminary stage of the litigation. The court will have another opportunity to consider the substance of the constitutional arguments, and not merely whether Virginia adequately pleaded its constitutional case. And as Judge Hudson wrote, this court will almost certainly not have the final say in the matter.
Aside from these immediate and serious, but perhaps fleeting, doctrinal concerns, there is another problem with the ruling: The court embraced and legitimized Virginia's theory that the mandate amounts to "regulating non-action," and in so doing transformed a mere political argument into a budding constitutional doctrine.
This "non-action" theory is by now well known: Congress can't require individuals to purchase insurance, because this amounts to regulating non-action; and non-action is inherently non-commercial, beyond Congress's Commerce Clause authority. Opponents of the individual mandate routinely make this argument, and Virginia pressed it hard before the court. The court bit, framing the mandate as "forg[ing] new ground and extend[ing] Commerce Clause power beyond its current high watermark." It wrote that "this case raises a host of complex constitutional issues," but that "all seem to distill to the single question of whether or not Congress has the power to regulate -and tax- a citizen's decision not to participate in interstate commerce."
But the "non-action" theory is constitutionally hollow. The decision to purchase health care without insurance is undoubtedly economic activity within the ambit of the Commerce Clause. We all at one time or another purchase health care - this is different than purchasing three servings of vegetables, the hypothetical that Senator Tom Coburn used to bait Elena Kagan-and the only question is whether we do it with or without insurance. Moreover, the government argued that the mandate was a critical element of the new national health care scheme. Just as the Supreme Court upheld federal regulation of home-grown marijuana for personal medical use as part of a larger federal regulatory scheme in Gonzales v. Raich, so too the mandate should be upheld as a critical part of a larger regulatory scheme that itself is authorized by the Commerce Clause. Finally, the aggregative impact of "non-action" certainly has a substantial effect on interstate commerce. The mandate is every bit as much within congressional Commerce Clause authority as the regulation of home-grown wheat for personal use in Wickard v. Filburn and the regulation of home-grown marijuana for personal use in Raich.
This conclusion is buttressed by the Necessary and Proper Clause and the Court's ruling this spring in United States v. Comstock. In that case, the Court held (7-2) that the Necessary and Proper Clause authorized Congress to enact a law that allows a federal district court to order the civil commitment of a federal prisoner designated as "sexually dangerous," even beyond the term of the prisoner's sentence. The ruling underscores the substantial sweep of the Necessary and Proper Clause and, taken with the Commerce Clause, the vast power of Congress. Federal power may be limited (as in "enumerated"), but in a complex, interdependent society it is not, as we so often hear, limited (as in "slight").
Thus the "non-action" argument isn't a serious constitutional argument at all. Instead, it's merely a political argument. And here's the problem: When opponents of the mandate (or of health reform in general) masquerade their political argument as a constitutional one, they risk constitutionalizing their ephemeral ideals for the sake of short-term, opportunistic politics. As a result, opponents contribute to a constitutional creep-first one judge, then the next, until rhetoric becomes reality. (This strategy -constitutionalizing ordinary political arguments - is played out over several constitutional provisions in today's politics. For example, the so-called "Tenthers" have been pressing their strong and novel states-rights version of the Tenth Amendment through public rhetoric and court cases to challenge federal policies that they don't like. At some point, with sufficient organization and support, their rhetoric could creep into our constitutional reality.) This could lock us all into a Commerce Clause that nobody likes when a future federal policy - perhaps one designed by the mandate's opponents - comes down the pike. For the opponents of the mandate, today's alluring argument against the mandate may become tomorrow's disfavored argument against their own preferred federal policies.
This is - and ought to be - the stuff of ordinary politics, not constitutional law. The debate shouldn't be about whether Congress has authority to enact the mandate; it does. Instead, the debate should be about whether Congress ought to exercise the authority in this way.
But that's not how the court treated the case this week. Instead, the court moved to constitutionalize the "non-action" argument by framing the case in its terms. The decision this week thus represents a first serious step toward transforming this political argument into a constitutional principle.