A Reasonable Limiting Principle for the Commerce Clause?

The Judicial Crisis Network today filed two briefs for the Patient Protection and Affordable Care Act’s Supreme Court litigation. One, filed on behalf of Speaker Boehner as amicus curiae, articulates how the PPACA’s individual mandate falls outside of the scope of congressional power under the Necessary and Proper Clause. The other, filed on behalf of 43 United States Senators as amici curiae, argues that the mandate exceeds the Commerce Clause’s power, impermissibly converting the Clause into a federal police power. Both briefs emphasize the impossibility of articulating a “reasonable” limiting principle for the use of Congressional power that also allows for the individual mandate. This lack of a reasonable limiting principle exposes one of the mandate’s inherent constitutional flaws, and risks a humiliating legal defeat for the Obama administration.

The lower courts have been dissatisfied with the administration’s efforts to articulate a reasonable limiting principle, and it is surprising that the DOJ’s brief on the individual mandate did not spend considerable time on this topic. The Eleventh Circuit, in striking down the mandate, statedthat the government’s theory “afford[ed] no limiting principles in which to confine Congress’s enumerated power.” Even the D.C. Appellate Court’s decisionupholding the mandate acknowledged “some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” As Florida Federal District Judge Vinson posited during his oral argumentson the topic: “If they decided that everybody needs to eat broccoli because broccoli is healthy they could mandate that everybody has to buy a certain amount of broccoli each week.”

Even if the administration attempted to address these objections, their efforts should be unsuccessful. No “reasonable” restraint on the Commerce Clause’s reach can exist within a constitutional framework upholding the individual mandate. 

As the Judicial Crisis Network argued in our briefs, the administration’s position depends on discarding a key precursor to relying upon the Commerce Clause’s power; in order to regulate, there must be preexisting activity substantially affecting interstate commerce. Even the DOJ’s Supreme Court brief fails to cite a single instance where the Commerce Clause has regulated inactivity.

If the Supreme Court ignores this distinction, this “reasonable” limit on Congress’s power to meddle in the lives of others would be a mere starting point for more expansive government intrusions. Courts have a long history of jettisoning supposed limits on constitutional power. New constitutional doctrines, created out of non-existent penumbras and emanations, quickly take unexpected minds of their own. As our brief argues, “It is hard to imagine any private decision not to purchase a particular good or service that does not have some economic impact when aggregated among millions of people.”

Even if the administration conjured up a “reasonable” limitation on the exercise of the Commerce Clause, it’s important to remember that opposition to the individual mandate is not just a prophylactic measure, aimed at preventing a broccoli individual mandate (or even worse, a Brussels sprouts individual mandate). The individual mandate is the bad result. It unprecedentedly expands Washington’s power to dictate the economic choices of millions of Americans. It necessarily involves a centralized government’s overriding of the decisions of millions of Americans who have already rejected the rationale that an elite class of intellectuals and misinformed central planners thrust upon them. Washington’s ability to take away from our full panoply of creator-endowed rights must be limited, and not just by forcing a group of lobbyist-funded politicians and philosopher-king judges to deem the cause reasonable enough. Liberty is too essential.

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