Is the Patient Protection and Affordable Care Act constitutional? What should the Supreme Court do?

This essay for our symposium is by Stephen B. Presser, the Raoul Berger Professor of Legal History at Northwestern University School of Law and a Professor of Business Law at Northwestern’s Kellogg School of Management.  He has been a frequently invited witness before Congressional committees to testify on constitutional issues, and is the author of several books and dozens of articles on constitutional law, legal history, and business associations.

 

It is quite likely that within the next year and a half or so the United States Supreme Court will decide the most important case to come before it in the twenty-first century.  At stake is nothing less than the first principle of the rule of law, whether pre-existing written constitutional measures can still serve as restraints on arbitrary power.  This will happen, if, as expected the Court decides to grant certiorari in order to resolve conflicting decisions from the lower federal courts over the constitutionality of the Patient Protection and Affordable Care Act (known as “Obamacare” to its critics). There are several constitutional issues that can be raised regarding the Act, but the most important is the so-called “individual mandate” provision that requires every American adult either to obtain health insurance or to pay a penalty for failing to do so.   As this is written (early August 2011) two district courts have clearly found that the individual mandate exceeds Congress’s power under the Commerce Clause, and three district courts, and one court of appeals, have equally clearly upheld the mandate.  More are expected to weigh in in the next few months, and it is very likely that the split on the district courts will be mirrored with a split on the courts of appeals.  Given the doubts thus raised about the legislation, it is almost inconceivable that the Supreme Court will not take the case.  But what will the Court do, and what should it do?

Most elite legal academic opinion treats the argument that the individual mandate is constitutionally flawed with something approaching the contempt displayed by former Speaker of the House Nancy Pelosi, whose response to doubters about the Act’s Constitutionality was simply to say “Are you serious?”  This seems to be the attitude, for example, both of Harvard Professor Laurence Tribe (from somewhat on the left)  and former Solicitor General  and current Harvard Professor Charles Fried (from somewhat on the right), both of whom have made clear their belief that since health care is such a huge part of the economy (reportedly about one-seventh of it) that surely Congress must be able to regulate it under its Commerce Clause powers, and, surely, requiring everyone to buy insurance, since it would spread the costs of providing health care, is sensible, and therefore constitutional.

There are a few of us in the academy, however, who aren’t so sure.  This includes libertarians such as Randy Barnett and Burkean conservatives like me.  For us, if Congress can do Obamacare, there is nothing that Congress can’t do, and if that’s the case, that’s the end of limited government.  And, if limited government is through, so is liberty, which the Constitution is supposed to protect.  Let me be a bit more precise.  What is at issue here are essentially two things.  One is the structure of the Constitution, which created not only a system of separation of powers, whereby the legislature could impeach and remove the executive, whereby the executive could veto acts of the legislature, and whereby the courts could void acts of either the legislature or the executive, but also the principle of dual state/federal sovereignty.  As Madison made clear in some of the most famous numbers of The Federalist, just as the branches of government were to check and balance each other, so the state governments were to have the primary law-making authority, and were expected to be able to resist the federal government, if it exceeded the powers granted to it in the Constitution.  This idea of “dual sovereignty,” and the notion that the federal government is one of limited and enumerated powers generally goes by the name of “federalism,” and is a cherished principle both of libertarians and Burkeans.

Federalism is the principle that is enshrined now in the Tenth Amendment, which states, with elegant simplicity, that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  For virtually all of our history this has been understood to mean that the federal government is supposed to be one of limited and enumerated powers, and that the primary governments are to be the state and local ones.  The federal government is to deal with external threats, such as national defense, and the maintenance of a uniform system of weights and measures, currency and coinage, copyrights and trademarks, and commerce between and among the several states and with foreign nations, but just about everything else is supposed to be for the states, for the local governments, and for the American people themselves.  Why?  A nice answer was recently provided by Justice Anthony Kennedy, who is quite likely to be the decisive vote when the Supreme Court rules on Obamacare.  Said Kennedy, writing for a unanimous Supreme Court in Bond v. United State on June 16 of this year:

The federal system rests on what might at first seem a counter-intuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”

Federalism, then, is all about the restraint of arbitrary power; for us, it is all about the nature of our Constitution, all about the rule of law itself.

But what of what the Court has done in the past?  To review some of the well-known constitutional markers – the Court ruled in Wickard v. Filburn (1942), that Congress’s power to regulate commerce extends to wheat grown on a farm for the consumption simply by the farmers’ family and livestock, since that consumption meant he would not be buying from other sources, and his failure to buy would have an effect on interstate commerce, and that effect, aggregated by the case of other farmers, could be substantial.  In Gonzales v. Raich (2005), the Court held that under the Commerce Clause Congress had the power to make criminal the production and use of home-grown cannabis even where the state where the cannabis was grown had approved its use for medicinal purposes.  This seemed to the Court to be an analogous case to Wickard, since the home-grown cannabis would have an effect on the interstate market for cannabis, which Congress presumably could regulate as it had done, by prohibiting any growing of cannabis.  On the other side are cases such as United States v. Lopez (1995), in which Congress sought to impose federal penalties for carrying guns into or near schools, and United States v. Morrison (2000),  in which Congress sought to impose federal penalties on those who perpetrate violence against women.    The argument for upholding the statutes in both those cases was that the activities in question, while they might not, strictly speaking, have involved commerce, had an effect on commerce, in the first place by interrupting learning, which would eventually adversely affect commerce, and, in the second, by interfering with women who might otherwise beneficially participate in commerce.  A majority of the Court was unpersuaded by that argument, reasoning, quite correctly, that to sustain those two statutes would be to signal that Congress could do anything under the guise of regulating commerce.  This the Court was then unwilling to do,  although significantly, a strong minority of the court was willing to buy the argument – signaling, perhaps, that for them the Tenth Amendment and federalism had lost their allure.

Lopez and Morrison turned on rather fine distinctions between “direct” and “indirect” or “substantial” and “insubstantial” effects on interstate commerce, but as far as I can understand the cases, they are not really about abstruse points of constitutional theory, but about whether the Court is prepared to take the argument that the federal government is one of limited and enumerated powers seriously.  For me, Lopez and Morrison stand for the proposition that the Court will reject any argument which suggests that there are no limits to Congress’s interstate commerce regulatory authority, but, alas, Wickard and Raich, offer some cover for those who are willing to grant Congress virtually unlimited power.  With regard to the Patient Protection and Affordable Care Act, the argument that has been made (and accepted by two district courts, and may soon persuade a court of appeals) is that to permit regulation of inactivity (a choice not to buy insurance) is to give Congress unlimited scope, because almost any inactivity can be seen to have adverse affects on health, and, if one thinks that health care is commerce, then on commerce itself.  Thus, as has been mentioned countless times, a decision to forgo eating fruits and vegetables could result in unhealthier Americans, raising the costs of health care, and thus, through the commerce power, Congress would be perfectly justified in requiring each of us to eat an apple or a serving of broccoli or peas a day.  A Congress that could do that could do anything, and if it could, federalism and the Tenth Amendment are dead letters.

Thus, the question the Court must ask, as it did in Lopez and Morrison, is “Does the argument that the statute is constitutional imply any limits on Congress’s power?”  If the answer to that is “no,” and I think it is, then the Court must reject the constitutionality of the individual mandate.  If Justice Kennedy meant what he said in Bond, he may well write the majority opinion making that point.  The friends of the rule of law and of constitutional government hope that he will.