Posted by: captainfalcon | June 30, 2011

Sixth Circuit Opinion on Obamacare

Text of the decision upholding the constitutionality of the Affordable Care Act is here. Judge Sutton’s reasons for rejecting as unworkable the activity/inactivity distinction excerpted here. Paroxysms of libertarian anxiety here. Money quote from the latter:

Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noncommercial activity nearly always has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships.

The idea is that, absent an activity/inactivity distinction, anything is regulable under the substantial effects prong of the Commerce Clause. But obviously modern Commerce Clause doctrine does not currently define “substantial economic effect” this broadly because otherwise Lopez and Morrison would have come out differently. As it’s highly unlikely the court is going to overrule Lopez and Morrison in the course of upholding Obamacare, it is also highly unlikely that the decision upholding Obamacare will compel recognition of the constitutionality of a healthy-eating mandate.

What this means is that the activity/inactivity distinction isn’t necessary to limit Commerce Clause doctrine. Here are three arguable distinctions between the individual mandate and a healthy eating mandate that are cognizable under current Commerce Clause jurisprudence: (a) the individual mandate is essential to a broader commercial regulatory scheme – the commercial regulations themselves won’t work absent it – whereas healthy-eating mandate wouldn’t be; (b) the individual mandate requires conduct that is partially constitutive of a national market, whereas to hold that a healthy-eating mandate  has a substantial economic effect requires piling “inference upon inference;” and (c) the individual mandate regulates participation in a national market with a long history of Federal involvement; a healthy-eating mandate would encroach directly on an arena – public health and morals – traditionally in the core of states’ police power.

Of course, it’s also perfectly possible for the Court to eschew these distinctions and actually use its upholding Obamacare as a lever with which to maximize the commerce power. From my point of view that risk is too insubstantial to take seriously, but maybe that’s just because I’m sympathetic with Obamacare’s goals and don’t suffer from a palpable fear of the state. (For considerations in favor of such anxiety, see here.)

Finally, a humorously intemperate excerpt from the post that’s money-quoted above:

The sweeping congressional power authorized by Martin and Sutton’s opinions makes a hash of the text of the Constitution, which gives Congress the power to regulate interstate and foreign commerce, not a blanket power to mandate anything that has a “substantial” economic effect. It also makes most of the rest of Congress’ Article I powers superfluous. For example, there would be no need for a separate power to tax. After all, failure to give the government some of your money voluntarily surely has substantial economic effects. Therefore, virtually any tax could be imposed through the Commerce Clause, without the need for a separate Tax Clause. Similarly, failure to serve in the armed forces surely has substantial economic effects. The Commerce Clause therefore authorizes Congress to impose a draft and purchase military equipment, thereby making the power to raise armies superfluous.

This is a particularly extravagant example of what the law calls a “parade of horribles.”


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