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The individual mandate: An unprecedented expansion of federal power

The following is an essay for our symposium on the constitutionality of the Affordable Care Act by Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.  Shapiro has been a leading advocate of the legal challenges to the individual mandate, having filed briefs in the Fourth, Sixth, Eleventh, and D.C. Circuits.  To read his contributions to our previous symposium, on Arizona’s S.B. 1070, see here and here.

What is there to say about this topic that hasn’t already been said repeatedly and in every conceivable medium?  The arguments on both sides have been debated on TV and radio and spilled across blogs, op-ed pages, professional bulletins, and academic journals (to list the major publication categories in increasing level of technical detail).  Then, of course, we have the actual legal briefs and court opinions, as well as the transcripts and audio recordings of the various court hearings.

So really, what is there new to say?  The editors here invited us to discuss the likelihood that the Supreme Court would grant the recently filed cert. petition out of the Sixth Circuit – or, presumably, appeals of any of the cases that will soon be on its doorstep – and, if it does, how it is likely to rule.  Well, ok, I can answer that – and will do so a bit later in this essay – but that sort of “expert speculation” seems hardly worth a SCOTUSblog symposium, particularly when Tom Goldstein’s proprietary handicapping is available.  In addition to that sort of bottom-line response, however, I want to provide an update – without rehashing all the arguments – to the reader who is aware of the Obamacare* litigation but (probably to his credit) doesn’t follow every twist and turn.

*Before I go further, let me explain that I use the term “Obamacare” simply because people colloquially refer to it that way – probably because it’s easier to say than “PPACA,” “Affordable Care Act,” or any other more cognate.  While thought in some quarters to be pejorative, I’ve never understood how that is (unless said with a sneer, but by that standard anything can be pejorative).  Even the leading academic supporters of Obamacare’s constitutionality, such as Yale law professors Akhil Amar and Jack Balkin, use the term, as did Time magazine’s managing editor Richard Stengel in his recent cover story about the Constitution.  The one semi-accurate criticism I’ve heard is that the law was mostly written by Congress, not the White House (for which the president got plenty of heat from the left).  But that just means it would be better to call it Pelosi-Reid-care, which presumably is no more or less pejorative.  In any event, that ship has sailed.


1. Primary resources

In an era when, in response to the excesses of the Bush and Obama administrations, citizens question not simply the wisdom of a given policy but the authority for enacting it, legal commentators find themselves at the center of public discussions that far transcend a think-tank scholar’s typical bailiwick.  With Obamacare being so central to our politics the last eighteen months or so, therefore, I’ve spent half my time in that span on this one issue (which is really a microcosm of the overall debate on the scope of federal power): briefs, blog posts, media, cross-country debates—and a law review article that uses these experiences as a prism through which to examine the legal arguments.

While not everyone has the luxury of investing so much time in something like this – even my distinguished fellow contributors have classes to teach or clients to service – but you really don’t have to sacrifice all your free time (or even be a lawyer) to understand what’s going on at whatever level of detail you like.  Here and here, for example, are excellent websites that track the various lawsuits across the country, including all the briefs and court opinions.  Here is a “primer for nonlawyers” on the anti-Obamacare arguments written by my colleague (and boss) Bob Levy.  Here is a similar type of publication from the other side by Simon Lazarus (whom I’ve debated many times).  And here, here, and here are three of my op-eds on the subject.  Finally, here is a seminal law review article by Randy Barnett – whom the New York Times called the “intellectual godfather” of these lawsuits – that shows why the federal requirement that everybody enter the marketplace and buy a particular product is unprecedented and unconstitutional.

2. State of play

When all this began in March 2010 – the same day President Obama signed the legislation, both Virginia and the Florida-led multi-state coalition filed complaints in federal court – mainstream pundits dismissed the challenges as legally frivolous, politically motivated sour grapes.  Even many sympathetic to the idea of a federal government that is constitutionally limited to certain enumerated powers were dubious because courts have been circumspect (to say the least) in recognizing these limits.

But these were – are – real lawsuits led by experienced counsel (who now include former Solicitor General Paul Clement and renowned appellate advocate Michael Carvin).  From their somewhat tenuous beginnings, they have gained steam, such that even the administration’s strongest supporters recognize that – with two district courts ruling against the government – the cases present serious issues of first impression that will ultimately be a close call for the Supreme Court.

Of the thirty or so cases around the country – challenging a variety of provisions, not just the individual mandate, on multiple grounds – five have already reached the appellate level on the merits of the individual mandate issue (a few others have done so on standing and other procedural grounds): those brought by Virginia and Liberty University, respectively, in the Fourth Circuit; by the Thomas More Law Center in the Sixth Circuit; by Florida, twenty-five other states, and the National Federation of Independent Business in the Eleventh Circuit (also challenging the new Medicaid structure as commandeering or otherwise coercing the states); and by a number of individuals in the D.C. Circuit.  (Cato has filed amicus briefs, often joined by other groups and Prof. Barnett, in each of these circuits.)

Every oral argument and judicial ruling, going back over a year now, prompts a new round of press releases and re-jiggering of briefs for the next case.  Most notably, of course, the Sixth Circuit in late June affirmed, by a vote of two to one, the constitutionality of the individual mandate on Commerce Clause grounds.  (The panel also rejected the taxing power argument – a darling of academia but so far gaining exactly zero votes in the judiciary.)

I stand by my initial reaction to that decision, and especially the pivotal concurrence by Bush-appointed Judge Jeffrey Sutton, as well as the longer critique I published ten days later.  The upshot is that Sutton did two fascinating things that initially seem ingenious but ultimately are too clever by half: (1) by rejecting the facial challenge (but remaining open to as-applied challenges once the mandate takes effect in 2014), he fails to understand that these claims were not against the executive misapplying an otherwise constitutional statute but against Congress’s power to pass the statute in the first place (in that regard, see Nicholas Quinn Rosenkranz’s path-breaking work on constitutional grammar); and (2) by decrying the Supreme Court’s inflation of federal power but concluding that it’s not a lower court’s role to invalidate legislation that goes beyond even the modern warped doctrine – he essentially challenges the Supreme Court to “put up or shut up” on federalism – he forgets that it is the decision on whether to expand on existing precedent is precisely that ultimate court’s alone.

In crafting such an elegant split of the Obamacare baby, the well-respected Judge Sutton may well have preempted a Democratic filibuster of his potential elevation to the Supreme Court, but in siding with the government he may have simultaneously lessened the chance of being nominated in the first place.  Ultimately, each side’s spin of judicial votes matters little: the only votes that matter are the nine on the Supreme Court.

3. Scenarios going forward

We know what the next series of developments will be but of course don’t know when: the Fourth and Eleventh Circuits will issue their rulings (probably later this summer), the D.C. Circuit will hear argument in September (and probably rule by the end of the year), and the Supreme Court may do something with the already-filed cert. petition.  Given how oral arguments went, the Fourth Circuit will almost certainly rule for the government, while the Eleventh is a toss-up and the D.C. Circuit has a panel composition favorable to the challengers.

The government’s main goal now is to delay Supreme Court review as long as possible – and certainly past the 2012 elections – because a ruling either way hurts the administration (by striking down its signature legislation or allowing a hugely unpopular law to stand and thereby energizing opposition voters).  It will thus ask for en banc review in any circuit where it loses while also seeking as long an extension as it can get in replying to cert. petitions (by citing the en banc process and also the development of cases currently pending in the district courts).

While the Court will likely hold all petitions until the Eleventh Circuit rules – because it probably sees that case, with its twenty-six-state involvement and high-wattage advocates, as the most important one – I can’t imagine it waiting beyond that.  And there’s little chance of the government succeeding in taking the Florida case en banc because beyond the panel there are only three other Democratic-appointed judges on the court (and the plaintiffs would likely go straight for cert. if they lose).  The most likely scenario thus remains that we’ll see argument before the Court next spring – probably during its last sitting of the Term, in April 2012 – with a decision coming the last week of June, less than a year from now.

4. Bottom line

All the Obamacare legal challenges boil down to Congress’s authority – or lack thereof – to require people to buy private insurance.  Although unfortunately not dispositive of modern judicial decisions, the text of the Constitution demands that the Supreme Court strike down the individual mandate as an unconstitutional exercise of Congress’s power to regulate interstate commerce.  Finding the mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity – in effect requiring an individual to engage in an economic transaction.

Moreover, upholding Obamacare would grant the federal government wide latitude to mandate that Americans engage in activities of its choosing.  An expansive holding here would fundamentally alter the relationship between the government and the people.  If the challenges fail, there will be no principled limits on federal power.

But will the Court go there, striking down such a large and important piece of legislation, the cornerstone of the Obama administration’s domestic policy?  On the one hand, the Court refrained from striking down such facially unconstitutional pieces of fundamental legislation as Social Security.  On the other, that legislation was largely popular and came during a time of great social upheaval.  If, as the old saw goes, “the Court follows the election returns,” the “shellacking” the Democrats received in November 2010 and Obamacare’s continuing bad polling may have steeled the spine of Justices inclined to overturn the law.  In particular, if the conventional wisdom is correct that Justice Anthony Kennedy will be the swing vote in a five-four decision – and I have no reason to distrust that wisdom here – then he may be swayed by what the American people seem to think is a gross infringement on liberty.

Indeed, I’m more sanguine now about Justice Kennedy’s vote than I was when the Obamacare lawsuits were first filed for two reasons – or, I should say, two cases: United States v. Comstock (2010) and Bond v. United States (2011).  In Comstock, the Court invoked the Necessary and Proper Clause to uphold the post-sentence civil commitment of federal prisoners deemed “sexually dangerous.”  While Kennedy voted to uphold the law, he wrote separately to emphasize the strict requirements that laws invoking the Necessary and Proper Clause must meet – noting in particular that the government must show something more than “a mere conceivable rational relation” between the law at issue and commerce when it uses the Clause in the context of its power to regulate interstate commerce.  Incidentally, Justice Antonin Scalia joined Justice Clarence Thomas’s dissent in Comstock, which is one of several reasons why I’m not concerned about his vote – despite Scalia’s concurrence in Gonzales v. Raich. (For more on Comstock’s impact on the Obamacare lawsuits, see a recent law review article I co-authored with Trevor Burrus.)

In Bond, meanwhile, Justice Kennedy wrote for a unanimous Court that individuals can raise Tenth Amendment claims that the federal government has overstepped its enumerated powers.  In the course of a tight, fourteen-page opinion, Kennedy takes about five pages to elaborate on the idea that constitutional structure – federalism, separation of powers, checks and balances, etc. – is there not as a formalistic exercise in political theory but as a means to the ultimate end of our Founding: protecting individual liberty.  For example: “The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines.”  Or take this: “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.”’”  There are plenty of good nuggets like that, and they dovetail with what Kennedy said about the Tenth Amendment in Comstock as well.

Now, if Kennedy joins the four “conservatives” in striking down the individual mandate, then I believe Chief Justice John Roberts – who admittedly joined the Comstock majority without writing separately, likely out of a desire for there to be one opinion commanding five votes – becomes the swing vote on severability.  The Chief is an incrementalist who cares deeply about the Court’s institutional reputation and thus – as he did in the PCAOB case last year – may not want to risk “rocking the boat” too much by throwing out the entire legislation if he can just excise the problematic provision(s).

That is, despite the absence of a severability clause, if the Court strikes down the individual mandate, it will have to choose how much else of Obamacare must fall with it.  The government has conceded, to its credit, that the community-rating and guaranteed-issue provisions are inextricably tied to the individual mandate.  The Court could thus go anywhere from that minimum carve-out to knocking out the whole thing – as Judge Roger Vinson did in the Florida case – because, in effect, the whole scheme breaks down (and none of it would’ve passed Congress) in the absence of the individual mandate.

The only precise prediction I’ll make is that, whatever the ultimate result is of all this, the Supreme Court will not issue a decision ratifying a more expansive use of the commerce power than it did in Raich.  It will either strike down this law or find some way to avoid the merits while effectively allowing the individual mandate to stand.

Recommended Citation: Ilya Shapiro, The individual mandate: An unprecedented expansion of federal power, SCOTUSblog (Aug. 3, 2011, 3:38 PM),