Origins of Commerce Clause Objections to the Individual Mandate

Origins of Commerce Clause
Objections to the Individual Mandate
David Bernstein, The Volokh Conspiracy

Democrats in Congress essentially ignored plausible constitutional objections to the ACA's individual mandate, and therefore have only themselves to blame if the law is declared unconstitutional.

A counter-meme has spread on the liberal/left that constitutional objections to the ACA's individual mandate were somehow invented circa late 2009, whereas previously all mainstream constitutional commentators, including conservatives, would have conceded that such mandates were constitutional. Here's Andy Koppelman:

The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written. They were invented only in the fall of 2009, quite late in the legislative process. The first exploration of Congress's authority to enact a mandate was a paper by Mark Hall, which he posted on SSRN in February, 2009...

Of course, there was little reason for anyone to have written about a mandate before such a mandate was being actively considered by Congress, given that President Obama had promised NOT to enact a mandate in his 2008 campaign.

But more to the point, constitutional objections based on the Commerce Clause to federal healthcare mandates are hardly novel. Here's attorney David Rivkin writing in the Wall Street Journal -- hardly an obscure venue -- in 1993:

In the new health-care system, individuals will not be forced to belong because of their occupation, employment, or business activities -- as in the case of Social Security. They will be dragooned into the system for no other reason than that they are people who are here. If the courts uphold Congress's authority to impose this system, they must once and for all draw the curtain on the Constitution of 1787 and admit that there is nothing that Congress cannot do under the Commerce Clause. The polite fiction that we live under a government of limited powers must be discarded -- Leviathan must be embraced.

The implications of this final extension of the commerce power are frightening. If Congress can regulate you because you are , then it can do anything to you not forbidden by the handful of restraints contained in the Bill of Rights. For example, if Congress thinks Americans are too fat -- many are -- and this somehow will affect interstate commerce -- who's to say it doesn't? -- can it not decree that Americans shall lose weight? [EDITOR: Or "eat broccoli"] Indeed, under the new system, any activity that might increase the costs of healthcare might be regulatable.

The Clinton Administration was sufficiently concerned about constitutional objections to its healthcare proposals that according to the November 15, 1993, Washington Times, the administration asked that Congress:

Require lawyers to file within one year after the massive plan becomes law any challenges to its basic constitutionality; Give exclusive jurisdiction to an unusual panel of three judges from the US District Court for DC; Forbid those federal judges from issuing temporary restraining orders or injunctions to stop the plan while the case is being litigated; Send appeals only directly to the Supreme Court; and consolidate separate cases.

The constitutional hubbub over Hilarycare was especially remarkable given that this was pre-Lopez and Morrison, that is before the only two modern cases to declare that there are limits to federal authority under the Commerce Clause. The objections weren't developed further at the time because Hilarycare never came close to enactment.

In short, the meme that conservatives expressed no constitutional objections to federal healthcare mandates until they became associated with Barack Obama is, in a word, false.

Just to preempt further comments along similar lines, the The issue is not whether you can find any conservative politicians or intellectuals who supported federal mandates as an alternative to a fully nationalized healthcare system. Rather, the point Andy Koppelman and others seem to be making is that the constitutional arguments against mandates were so unprecedented, so out of the blue, that you couldn't expect Democrats in Congress to be aware of them. I think that's false.

A decent historical analogy (but in reverse) would be the National Labor Relations Act, passed in 1935. "Mainstream" opinion at the time was that the Act was unconstitutional, and the Supreme Court would so hold. But reasonable observers were also aware that:

A) the Court could choose to distinguish past precedents, even if tenuously, and uphold the act; and

B) there was growing sentiment that the scope of the Commerce Clause should be broadened, and this might rescue the Act.

So Congress passed it anyway, and the Supreme Court, following an election in which the pro-"Big Government" side one handily, decided that the Commerce Clause could be expanded without (yet) completely abandoning its prior jurisprudence.

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