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Reading the constitutional tea leaves: How will the Supremes vote on the Affordable Care Act?

The following essay for our symposium is by Cory Andrews, Senior Litigation Counsel of the Washington Legal Foundation.  WLF is a public interest law firm located in Washington, D.C. Mr. Andrews served as counsel of record for WLF in the Fourth, Sixth, and Eleventh Circuits in briefs filed by WLF in opposition to the PPACA’s individual mandate.


Among the many pieces of legislation signed into law by President Obama, none has sparked more controversy than the Patient Protection and Affordable Care Act of 2010, or “ObamaCare” as it is more colloquially known.  The individual mandate contained in Section 1501 seeks to compel most Americans, under threat of civil penalty, to purchase health insurance by 2014.  Even many of the mandate’s defenders, including some of the judges who have upheld it, concede that it goes well beyond any previous exercise of federal authority under the Commerce Clause.

In terms of framing the legal questions posed by the individual mandate, it is difficult to improve upon Judge Graham’s formulation in Thomas More Law Center v. Obama:

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.  What aspect of human activity would escape federal power?  The ultimate issue in this case is this: Does the notion of federalism still have vitality?  To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for-type of economic connection, which nearly all human activity does. . . .  Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.  A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

However elastic Congress’s power may be under the Commerce Clause, it is not unlimited. In construing this power thus far, the Supreme Court has limited it to the regulation of individuals already engaged in “commerce.”  In other words, the Commerce Clause permits Congress to “regulate” commerce, not to command it, and not to create it from whole cloth where none exists.  It empowers Congress to regulate economic “actors,” not those who have never entered the relevant marketplace and who merely wish to be left alone.

Alderman v. United States. Some commentators have asked whether the Supreme Court’s denial of certiorari earlier this year in Alderman v. United States suggests a reluctance on the part of the Court to cabin the scope of Congress’s power under the Commerce Clause.

In 2005, federal authorities charged Cedrick Alderman with violating a federal statute barring convicted felons from possessing bulletproof vests.  Alderman urged the district judge to dismiss his indictment on the grounds that the law exceeded Congress’s power under the Commerce Clause. The judge disagreed, upholding the constitutionality of the federal law, and a panel of the Ninth Circuit affirmed the district judge’s ruling by a two-to-one vote.  Alderman unsuccessfully petitioned the Supreme Court for certiorari.

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented from the Court’s decision to deny review of Alderman’s case.  In his dissent, Justice Thomas noted that “lower courts have cried out for [Commerce Clause] guidance,” and that the “Court has a duty to defend the integrity of its precedents.”  But by failing to take up the case, Justice Thomas lamented, the Court allowed to stand a lower court ruling that “threatens the power limits on Congress’ commerce power that our Constitution reserves to the States.”

Does the denial of cert. in Alderman tell us anything about what the Court will likely decide on the PPACA’s individual mandate?  No, not really.  As every law student knows, the denial of cert. should never be misunderstood as somehow suggesting that the Supreme Court approves of the decision of the lower court.   Rather, as the Court made clear in Missouri v. Jenkins (1995), such a denial “imports no expression of opinion upon the merits of the case, as the bar has been told many times.” The Court’s decision not to review Alderman has no legal effect on the state of the Supreme Court’s Commerce Clause jurisprudence, which remains unchanged despite the denial of review in Alderman.

In any event, the Ninth Circuit’s opinion in Alderman hinged on the well-settled notion that the Commerce Clause grants Congress the authority to ban possession of a tangible good once it has travelled across state lines or has otherwise been sold in interstate commerce. But such congressional authority does not animate concerns about the individual mandate, which purports to regulate neither the possession nor purchase of any good of any kind (much less one possessed or purchased in interstate commerce), but rather regulates the mere status of being uninsured.  If the Court sets out to unravel the thorny issues presented in the litigation over the PPACA, it will assuredly do so without consulting the Ninth Circuit’s opinion in Alderman.

Bond v. United States. Another recent Supreme Court opinion has also raised eyebrows among those who are closely following the PPACA litigation.  In perhaps its most important ruling this year, Bond v. United States, the Court held that a criminal defendant indicted on charges that she violated a federal statute has standing to challenge the validity of the statute on the ground that it infringes on the powers reserved to the states under the Tenth Amendment.  In Bond, the Court reaffirmed the important role federalism plays as a structural limitation on the federal government – a limitation necessary to protect the freedom of individuals.  Writing for a unanimous Court, Justice Kennedy stated:

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 secures the freedom of the individual.  It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. . . .

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. . . .  By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.  When government acts in excess of its lawful powers, that liberty is at stake.

“Fidelity to principles of federalism,” Justice Kennedy further noted, “is not for the States alone to vindicate.”

Critics of the PPACA have long argued that, by imposing the individual mandate on uninsured Americans, Congress seized for itself the very power that the Constitution reserves exclusively to the states.  In defending the law in court, the Justice Department has consistently sought to downplay the notion that principles of federalism somehow impose meaningful structural limitations on the constitutional scope of Congress’s enumerated powers.

But Bond clarifies that the principles of federalism embodied in the Constitution must be read broadly enough to achieve their intended purpose of securing “the freedom of the individual.” By emphasizing that “an action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States,” Justice Kennedy’s opinion offers a vision of federalism at odds with the Obama Administration’s briefing in the PPACA litigation.  Bond insists that “[i]impermissible interference with state sovereignty is not within the enumerated powers of the National Government.” As the various legal challenges to the individual mandate wind their way through the courts, defenders of the mandate will have to contend with a unanimous Court that has resoundingly reaffirmed a view of the Constitution’s structure that imposes very real limitations on the powers of Congress.

The Individual Mandate Is Not A Tax. One thing now seems almost certain – the Justice Department’s repeated contention that the individual mandate is authorized by the Tax Clause is a legal and judicial non-starter.  Indeed, every court to have considered the question, whether upholding the individual mandate under the Commerce Clause, or striking it down as an overreach of power, has squarely rejected this argument.  In doing so, the courts have apparently agreed with President Obama’s early pronouncement immediately after the PPACA was signed into law.  In a widely broadcast interview, President Obama insisted that the mandate was “absolutely not a tax” and, in fact, “[n]obody considers [it] a tax increase.”

Found in Article I, Section 8 of the Constitution, the Tax Clause gives Congress “the Power to lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for the common Defence and general Welfare of the United States.”  While the Court’s precedents under the Tax Clause give Congress broad authority to tax income and commercial transactions, they do not give it the power to use monetary fines to force people to purchase products they do not want.

Allowing Congress to use fines re-labeled as taxes to regulate conduct that it could not otherwise reach would effectively gut all remaining limits on federal power.  The federal government could use this authority to compel citizens to do virtually anything. And even if the monetary penalty imposed by the individual mandate is a tax, it is still not permitted by the Constitution because it does not fall under any of the categories of taxes that Congress is authorized to impose.  It is neither an excise tax, an income tax, nor a direct tax apportioned among the states.


Recommended Citation: Cory Andrews, Reading the constitutional tea leaves: How will the Supremes vote on the Affordable Care Act?, SCOTUSblog (Aug. 8, 2011, 3:37 PM),