Betting the longshot...

Randy Barnett shares his thoughts about the presumed constitutionality of mandatory healthcare insurance.

We conclude that this claim of power is, quite obviously, beyond the original public meaning of the enumerated powers scheme. It is also well beyond any previous Commerce Clause decision by the Supreme Court, including Wickard v. Filburn and Gonzales v. Raich. And finally, we do not think there are five Justices who will want to extend the commerce powers of Congress beyond Raich, especially for a program that may well be very unpopular politically by the time a challenge reaches the Court. Never in its history has the Court affirmed that Congress has a plenary police power, and it is not clear how it could limit a doctrine upholding this claim of power.

I realize this may seem counter-intuitive to many readers, but consider this. Anything that has never been done before is literally unprecedented, which means it lacks any precedent. So the question is, will the Supreme Court want to authorize this new extension of congressional power in light of the fact that it violates the first principles it affirmed in Lopez and Morrison? Or, to the contrary, will it want to take the opportunity reaffirm that these principles still apply, notwithstanding Raich, in a case with no further implications beyond the statute in question? Step right up and place your bets.

Oh yes, and for those who care about constitutional law: Raich involved an “as-applied” challenge wherein the Court refused to carve out a subset (marijuana produced and possessed for medical purposes as authorized by state law) of a larger class of activities (all production, distribution and possession of marijuana) where Congress deemed it essential to include the subclass as part of its larger regulatory scheme. A challenge to the individual health insurance mandate will be a “facial” challenge, as were Lopez (possession of guns within 1000 feet of a school) and Morrison (gender motivated violence), that will take the “class of activities” to be “regulated” as given by the statute to assess whether it is within the power of Congress to reach this class.

So here is the kicker: the “class of activities” is actually the inactivity of not participating in the market for insurance. In other words, it is doing nothing. So five Justices would have to find that Congress may compel a person to enter into an economic transaction under its power to “regulate commerce . . . among the several states.” I suppose the safe money is ALWAYS that the Court will uphold a statute. But even here? Unless the Congress takes seriously its duty to independently consider the constitutionality of its exercise of power (rather than merely predict how the Supreme Court with rule), it now looks like we will see.

Change is often slow in coming, and sometimes it seems like we're stuck in a rut. But all change begins somewhere, and tracking it down is like visiting the headwaters of the Mississippi in Lake Itasca, and realizing just how small and manageable some things start out as, before taking on a power of their own that others can only hope to harness (ie, the predictors.)

UPDATE: Barnett added the link to his paper, outlining why such a mandate is unconstitutional:

Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and, as this paper will explain, no decision or present doctrine of the Supreme Court justifies such a claim of power. Therefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine. This memorandum explains why the two powers cited by supporters of this bill — the power of Congress to regulate interstate commerce and the power of Congress to tax — do not justify an individual mandate, even under the most expansive readings given these powers by the Supreme Court. In particular, this paper addresses four topics that have not yet been given adequate consideration by Congress and most, if not all, of the commentators:

* First, most arguments, either favoring or opposing the individual mandate, do not discuss the Supreme Court’s “class of activities” test, which it has applied in every relevant Commerce Clause case. This paper addresses this oversight and argues that, despite the broad congressional power to regulate interstate commerce, the individual mandate provision fails this test and is unlikely to survive the Court’s review.

* Second, this paper addresses the common, but mistaken, suggestion that a universal federal mandate to obtain health insurance is no different than a state requiring its licensed automobile drivers to have liability insurance for their injuries to others.

* Third, this paper analyzes claims arising under the Taxing Clause. A preliminary review raises serious questions about the constitutionality of using the taxing power in this manner.

* And finally, this paper explains why it is highly unlikely that the Supreme Court would break new constitutional ground to save this unpopular personal mandate.