Liberals claim that to strike down Obamacare would run counter to decades of Supreme Court precedent about the scope of the congressional power to regulate commerce among the states. Conservatives, while unenthusiastic at best about the precedents, argue that to affirm Obamacare would go beyond them. So how should this case be distinguished from those precedents?
Michael Greve’s new book The Upside-Down Constitution, which I recently reviewed for NR, provides a compelling answer: Unlike the governmental actions at issue in those previous cases, this one involves a commandeering of individuals that cannot be considered “proper” under the Constitution. His argument is that most of the cases we file under the heading of the “commerce clause” would better be analyzed as “necessary and proper clause” cases. He begins with Gonzales v. Raich, a 2005 case affirming the power of Congress to prohibit the cultivation and possession of marijuana even for non-commercial distribution within a state.
Justice Scalia concurred in that result, which has led people who have not read the opinion closely to assume he might vote to uphold Obamacare. Writes Greve:
Justice Scalia observed that purely local, noncommercial activities, aggregated or not, cannot possibly be interstate commerce. The question is whether the federal regulation of those activities is necessary and proper to the regulation of that commerce. . . . The central inquiry . . . is whether the federal regulation of some activity, regardless of its “economic” or purely in-state nature, is nonetheless “necessary and proper” to the regulation of commerce among the several states. Each part of that inquiry has, or should have, independent meaning.
Greve then quickly summarizes the implications of this approach.
Wickard, despite its preposterous analysis, was rightly decided: grant Congress the power to limit the interstate supply of wheat and other commodities, and the power to suppress local evasion follows directly, albeit depressingly. On the limiting side, neither the Gun Free School Zones Act in Lopez nor the civil remedies provision at issue in Morrison was plausibly related, let alone necessary, to anything having to do with interstate commerce. Thus, even on very deferential judicial premises, the decisions were right. Raich turns out to be a hard case: is the prohibition against the mere possession of marijuana — neither commerce nor interstate — nonetheless “necessary” to a legitimate Commerce Clause objective and a set of interstate transactions? Plainly, Congress may suppress the shipment of marijuana and other drugs into states that do not want them. But the effect of local marijuana cultivation and consumption, under state-imposed restrictions, may be sufficiently remote to warrant the inference that the federal prohibition was simply targeted at suppressing policy competition among states (which differ greatly with respect to their “medical marijuana” policies). Justice Scalia deferred to the judgment of Congress; Justice Thomas believed not a word of it and therefore dissented. Reasonable minds will differ about the outcome and the appropriate level of judicial scrutiny, but at least they will differ over the right question.
But necessity is not the end of the analysis. Assuming that the individual mandate in Obamacare is “necessary” for carrying into execution the power of Congress to regulate commerce among the states, is it “proper”? The structure of the Constitution suggests a negative answer.
Federal laws generally presuppose some affirmative private act as a predicate for compelling further private actions; and the constitutional provisions that suggest a federal authority to “commandeer” private parties are few, institutionally cabined, and calculated to ensure the operation of the government’s own institutions (such as the armed forces and the jury system) — not, as under [Obamacare], to protect the profitability of private corporations. The form in which the government exercises its authority counts a great deal in the “proper” analysis.
The parallel that jumps out is to Printz v. United States, the 1997 case in which the Court — with Justice Scalia writing for the majority — held that the federal government may not commandeer the states, as provisions of the Brady Act, a gun-control law, had attempted to do. In this case the Court found that the constitutional structure implied the impropriety of congressional means of imposing its will.
Nor do the parallels end there. As has often been observed of the individual mandate, Congress had alternative means of achieving its end. (Congress could, for example, condition states’ receipt of federal funds on their cooperation in the gun-registration scheme.) The Constitution prohibits the states from doing many things, but only allows Congress to issue affirmative commands to the states in specified instances. This pattern implies the presumptive impropriety of additional commands.
The apparent point is to ensure, to the extent any constitution reasonably can, accountability. The constitutional baseline is that the federal government should not be able to blame the failure of its regulatory schemes on poor implementation by the states, and states should not be able to blame their administrative failures on unrealistic demands by the federal government. The Constitution cannot prevent governments from bargaining around this baseline to frustrate this goal, but it can force some transparency on the process.
In limiting commands from the federal government to individuals, the Constitution serves similar purposes. Congress cannot keep the costs of its ideas for health-care policy off the budget by simply ordering individuals to pick them up. Liberals have noted the supposed irony of the fact that a single-payer program would survive the constitutional scrutiny now being brought to bear on the mandate. The constitutional rule at issue nonetheless limits government by forcing Congress to confront the costs of any such scheme.
In this context Akhil Amar’s recent argument for the constitutionality of Obamacare can be seen to miss the point. Amar notes that the Militia Act of 1792 forced individuals to procure arms. Amar rather oddly assumes that the act was passed pursuant to the Second Amendment’s stipulation that the militia be “well regulated”; therefore a command can be a proper regulation. In actuality (as Adam White points out) the act was passed pursuant to Congress’s Article I power to call forth, arm, and organize the militia. And the fact that the Constitution explicitly allows the government to issue affirmative commands to individuals in highly limited circumstances does not argue in favor of the proposition that it has a general power to issue such commands; it argues against that proposition. (The militia clauses, incidentally, further suggest the parallel between commandeering of individuals and of states, as they authorize both.)
In sum and in short: The constitutional line of propriety runs between proscription and prescription. None of the New Deal cases, whatever one thinks of them, moves that line. And the mandate falls on the wrong side of it.
— Ramesh Ponnuru is a senior editor at National Review.