Posted by: captainfalcon | December 22, 2010

The “Attenuated Effects” Test

I read Judge Hudson’s opinion in Virginia v. Sebelius, which (inter alia) declares §1501 of the Affordable Care Act – the provision mandating the purchase of health insurance – to be an unconstitutional exercise of the Commerce Clause power. The crux of Hudson’s opinion comes at the doctrinal level, with this characterization of Supreme Court commerce clause case law:

In surveying the legal landscape, several operative elements are commonly encountered in Commerce Clause decisions. First, to survive a constitutional challenge the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity. The constitutional viability of [§1501] in this case [therefore] turns on whether or not a person’s decision to refuse to purchase health care insurance is such an activity. (Emphasis added).

Seems to me that sentence three of the foregoing is supposed to be evidence for the proposition that, to be regulable under the “substantial effects” prong of commerce clause jurisprudence, conduct must be economic activity. If I’m right, that is a remarkably bad inference; a Supreme Court doctrine is derived from the happenstance that the Court hasn’t yet been confronted with a case in which to give the doctrine its consideration! It is especially egregious given that Scalia’s concurrence in Gonzales v. Raich gives a beautiful account of how substantial effects commerce clause questions ought to be addressed:

[T]he power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective…Lopez and Morrison affirm that Congress may not regulate certain “purely local” activity within the States based solely on the attenuated effect that such activity may have in the interstate market. Gonzales v. Raich, 545 U.S. 1, 38 (2005) (Scalia J. concurring)

The proper test isn’t whether the regulated conduct is economic activity; the proper test is whether the regulated conduct has more than an attenuated effect in the interstate market. The right way to figure out what the hell an “attenuated effect” is, in turn, is to look at the analyses in United States v. Lopez and United States v. Morrison. You will find that in each of those cases the Court struck federal regulations the obvious point of which was to impose on the States criminal or tort law policies. In other words, policies governing the primary conduct of a State’s citizens and so deeply enmeshed with State sovereignty. In other words, “purely local” policies.

Until the Court amends its commerce clause case law, federal district judges should be playing the “attenuated effects” test game (whether they call it by that name or not). As it is fairly clear that the point of §1501 is not to encroach on core State functions, but to make effective the regulation of the interstate healthcare market, and as it is even clearer – uncontested by Virginia – that without §1501 the ACA regulatory scheme falls apart, §1501 regulates conduct that has more than an attenuated effect in the interstate market, and so passes constitutional muster under current Supreme Court doctrine.




  1. […] stand by my earlier post’s analysis of current Supreme Court doctrine, but my criticism of Judge Hudson begged too many […]

  2. […] is a blatant endorsement of the folly I predicated of Judge Hudson here, and which MM, optimistic and charitable as ever, resisted attributing to him. I’d also note […]

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