Posted by: captainfalcon | March 18, 2012

Losing Scalia

Paul Clement, in respondents’ brief on whether the individual mandate exceeds Congress’s commerce power (oral arguments next Tuesday):

The federal government may not avoid that inescapable conclusion [that the individual mandate is improper] simply by arguing that the otherwise impermissible provision is part of a “comprehensive regulatory scheme.”  It would be an  odd notion of limited and enumerated powers that  allowed the comprehensiveness of surrounding  legitimate regulations to empower Congress to go the  final mile and compel individuals to enter into its  regulatory sphere.  Contrary to the federal  government’s assertions, the Court has not hesitated  to strike down laws that are not proper, even when  they are integral components of otherwise permissible  regulatory schemes. [p. 14].

Justice Scalia, concurring in Gonzales v. Raich, espousing Clement’s “odd notion:”

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the 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. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. See Lopez,supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”Lopez, supra, at 567—568. . . . 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. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation.

Maybe the idea is that “compelling individuals to enter [Congress’s] regulatory sphere” cannot be necessary to make interstate regulation effective, only to make interstate regulation possible, so the two views can be reconciled? This would jibe with the doctrinal distinction Clement draws between the power to regulate commerce and the power to compel entry into commerce: “The Constitution grants Congress the power to  regulate  commerce, not the power to compel  individuals to enter into commerce.  That distinction is  fundamental. A power to regulate existing  commercial intercourse is precisely what the framers  sought to confer  upon the new federal government.   The power to compel individuals to enter commerce, by contrast, smacks of the police power,[1] which the framers reserved to the States.” [p. 11]. (It is a feather in Bob Levy’s prescience-cap that Clement plumps for this distinction between compelling the creation of markets and regulating pre-existing markets, and not the “activity/inactivity” distinction, as fundamental.) The argument seems to be that because the individual mandate is an exercise of Congress’s purported power to force people to enter commerce, it must not be an exercise of its power to regulate.

The problem, as Andrew Koppelman points out, is that forcing people to enter the health insurance market can be a means of regulating the healthcare sector of the economy. In Obamacare’s case, the health insurance market is regulated by imposing a series of requirements on insurers, and forcing people to enter the health insurance market is (it is argued) necessary to make that regulation effective (specifically, to pay for it). That this is a coherent theory refutes the notion that to force people to enter commerce cannot amount to regulating commerce. Clement’s and Scalia’s positions are thus incompatible, which is bad news for the respondents. (Scalia, of course, has the capacity to distinguish his concurrence in Raich from the “odd notion” Clement attacks, but perhaps it is a reason to think Scalia might vote to uphold the mandate that to do otherwise would, indeed, require that a distinction be drawn.)

[1] The reason Clement argues that the power to compel individuals to enter commerce “smacks of the police power” is that, post-Lopez and Morrison, the doctrinal game in commerce clause litigation is to show that Congress’s purported exercise of the commerce power threatens “to completely obliterate the Constitution’s distinction between national and local authority,” to trench on “areas of traditional state regulation,” or otherwise to “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”



  1. […] of Herculean self-discipline, makes the only prediction warranted by the facts. (So much for Losing Scalia . . […]

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