Unmasking the Real Revolutionaries

May 11, 2011
Guest Post

By Adam Winkler, a constitutional law professor at UCLA School of Law.


Tuesday’s oral argument in the U.S. Court of Appeals for the Fourth Circuit unmasked the true revolutionaries in the battle over health care reform. Ever since President Obama’s signature legislative accomplishment was enacted, opponents have taken to the airways decrying the law as a radical attempt to expand the power of the federal government. Never before has Congress regulated “inactivity” and forced citizens to do something like buy health insurance, they have insisted. 

Of course, it doesn’t take long to find examples of Congress doing just that: forcing people to file tax returns, serve on juries, sign up for the selective service. But those are different, health care’s opponents argued, because none of them required individuals to purchase a product from a private party. When it was pointed out that Congress forced people to purchase firearms and ammunition in the militia acts of 1792, opponents once again came up with a creative answer. That was an exercise of Congress’s Militia Power, not the Commerce Power. Left unanswered was why Congress would have the power to mandate such transactions under any other clause but the Commerce Clause – an especially bewildering distinction given that we’re talking about mandated commercial transactions.

The judges on the Fourth Circuit were, indeed, bewildered. They just didn’t understand the opponents’ argument that inactivity was beyond the reach of Congress’s power. In their questions to the advocates, they wondered where this bright new boundary on Congress’s power originated. They noted that the text of the Constitution doesn’t say anything about inactivity limits; rather, it says “Congress shall have Power to make all Laws which shall be necessary and proper for carrying into Execution” each and every one of its powers, including the Commerce Power. They observed that no Supreme Court case has ever held that Congress cannot regulate inactivity; rather, the longstanding precedents say “all means which are appropriate, which are plainly adapted to” legitimate ends are permitted.

Health care opponents have no qualms about judges reading into the text of the Constitution words that the framers never imagined and calling into question two-hundred-year-old Supreme Court opinions written by members of the founding generation. The judges in Tuesday’s hearing pushed back, however, wondering why, if the activity/inactivity distinction was so central to the Commerce Clause, didn’t Daniel Webster mention it when he was clarifying the meaning of that provision in the early 1800s? Had they been more direct, they might have asked what happened to that originalism so ballyhooed by those who are now fighting to overturn health care reform.

That was, apparently, yesterday’s revolution. When it comes to health care, opponents of health care believe anything goes. They’ve tried promoting state laws declaring the federal law null and void, despite the clear command in the Constitution that federal law is supreme. They’ve tried interstate compacts to escape the mandate, insisting that regardless of longstanding practice such agreements need not be presented to the President for his approval. Further evidence of opponents’ radicalism was reflected in the fact that Virginia was even a party to the dispute in the first place. The judges expressed considerable skepticism that a state can simply pass a law in order to create standing to sue.

Of course, nothing in Tuesday’s hearing will put an end to health care opponents’ revolutionary fervor. If the judges uphold the law, the lawyers have already promised to discard with the ordinary process and appeal directly to the Supreme Court, without asking for a rehearing by a larger panel of Fourth Circuit judges. They must be worried that the composition of the Court might change. Or perhaps they realize that the more their argument is discussed and picked apart, the sooner its radicalism will be exposed.