Randy Barnett on the Commerce Clause and the Individual Mandate
I was going to write a long, long post about the commerce clause and the individual mandate, but this video of Randy Barnett does the job a whole lot better. One thing I hadn’t quite appreciated was the degree of entanglement between the commerce clause and the necessary and proper clause — without the latter, it is indeed nonsensical to speak of modern commerce clause jurisprudence. Randy’s talk helps pick through the confusion (much better than my attempts here and there). Anyway, here’s the video, with a guide for the impatient below it:
13:22 — The tax power theory — that is, the claims of power stemming from the general welfare clause — have already been dismissed in court. There doesn’t seem to be much chance for them. The commerce clause is a much more difficult call.
39:57 — The distinction between activity and inactivity is fundamental in our law.
42:57 — Other forms of compelled individual activity, including military service, jury duty, and census responses, are all authorized by other provisions of the Constitution, not by the commerce clause. They each relate to the duties of citizens as citizens, not to a desired economic goal that Congress would like to achieve.
43:44 — If the decision not to engage in economic activity itself counts as economic activity, then everything counts as economic activity, and Congress has power to command any specific action at all. Under such a theory, we would no longer have a government of limited powers.
52:35 — A solid precedent exists for not commandeering state governments to do the federal government’s bidding. Commandeering individuals has not yet been directly addressed, but one can still easily make a case that mandates are different from regulations. One doesn’t often reach the Thirteenth Amendment, but this arguably would.
53:52 — Prohibitions, regulations, and mandates — the latter is a step beyond the other two. Other mandates, like draft registry, jury duty, tax returns are not imposed by Congress’s power to regulate economic behavior.
59:23 — On the novelty of the anti-commandeering doctrine. It is only new because Congress has never attempted to enact anything similar. No one imagined that we might have to articulate it.
1:00:29 – Adopting his argument would not result in dismantling the New Deal, but only in striking down the individual mandate. Nothing more.
Finally, here’s the paper the talk was based on.
On a practical note Jason, as I see it if the individual mandate were struck down I don’t imagine anyone would be more pleased by this than true hard left-wing economic liberals. They’d be delighted because, of course, with the individual mandate dead a lethal economic cycle would be created that would end with the private insurance companies being eviscerated and destroyed since there’d be nothing to prevent people from simply not buying health insurance until they got sick.Report
@North, Or more likely a true national health care plan based on good old fashioned taxes covering everybody or some other of the preferred lefty plans would be put in place.Report
@gregiank, Well yes greg but that’d be a theoretical consequence of the death of private insurance.Report
@North, I think private insurers have some access and ability to petition the government for action. Way before exec bonuses are even considered for a cut, they will make sure their interests are heard.Report
@gregiank , Perhaps Greg but as of November we’re most likely looking at a GOP run Congress with Obama as President and probably a Dem controlled but very nearly split senate. How’s any kind of bill saving the insurance companies going to get through that mess?Report
Jeez don’t any of you idiots pay any attention at all to what’s going on in the world?
If the mandate goes, with a Republican Congress elected largely in opposition to the health care bill it’s at least as likely that the entire Obama bill will be repealed.Report
@Koz,
Have you ever heard of a veto?Report
@ThatPirateGuy,
Also controlling the house isn’t the same as controlling both houses.Report
How does that change things. President Obama might decline to veto a repeal, or the Congress might vote to override it if he does veto (with substantial Demo support).
The point being is that the Demo’s fallback position is that even if we don’t like the health care bill we’ll acquiesce to it after a while. Frankly the jury’s still out on that one but it’s probably less likely if individual mandate is held unconstitutional.Report
@Koz, Heh, So the Republicans are going to capture a filibuster proof majority in the Senate and Obama is going to sit on his hands while they repeal his biggest legislative achievement. What color are the unicorns in your world Koz?Report
They may not need to. It’s one thing to force Blanche Lincoln or whoever to walk the plank in order to get Obamacare over the hill?
Do you think Dianne Feinstein or Patrick Leahy intend to give up their own Senate seats to keep it?
(Btw, a veto-proof majority is much bigger than a filibuster-proof majority)Report
Bringing an old thread back from the dead to illustrate my point:
http://dyn.politico.com/printstory.cfm?uuid=6277B87B-F4AB-4F50-B8B3E5193D6C09BB
In interviews after the marathon three-hour meeting, several senators and senior aides told POLITICO that Nelson was just one of several senators to express anger at White House missteps — and air deep concerns about their own political fates if Obama and the Democratic Party leadership can’t turn things around by 2012.
…………
If Democrats keep losing the message war, they worry, they will be wiped out in 2012. “Report
@Koz, I’m still not calculating out the math here Koz. The GOP captures the house, odds look excellent.
Now the various vote counters are currently predicting that they don’t get the senate majority. In that case a GOP repeal arrives in the Senate and sits and dies. Case closed.
Now the next most likely (rather unlikely based on senator counting) scenario is the GOP wins some bare majority in the Senate. In that case why on earth would the Dems, smarting from defeat and from years of constant filibustering, not filibuster the daylights out of this repeal?
The finally of course somehow the Dems (and remember if they’re in the minority they’ll be rid of most of their most conservative Senators, the moderates always go first when majorities shift to minorities) fail to sustain a filibuster. Somehow, it’s somewhat plausible, party discipline isn’t their forte they pass the repeal through on a bare bones majority. Maybe the GOP votes plus one or two dems… 51-55 votes max…. somehow we’re positing that Obama won’t veto the heck out of the bugger and send it back to square one?
I’m sorry it just doesn’t parse. The GOP would need a voter tsunami that’d make ’94 look like a kiddie pool splash to have a shot at repealing HCR. There’s a reason they were so livid when it passed. Their best odds of killing it are all behind them.Report
“Maybe the GOP votes plus one or two dems… 51-55 votes max…. somehow we’re positing that Obama won’t veto the heck out of the bugger and send it back to square one?”
No no no, you’re misunderstanding the scenario. Some significant part of the Obama bill goes down in a legal challenge, or somehow the Obama bill continues to be the focus of domestic politics after the election. It remains hugely unpopular with substantial majorities mobilized against it.
We’re not looking to get 1 or 2 Senate D’s to vote for repeal, we’re looking at 20+ votes.Report
@Koz, So now you’re projecting out to 2012 and believing that after 4 years of republican control of congress that 2012 will be another GOP wave election that hikes their majorities to even greater heights and also installs a republican president? I’ll concede readily that under that scenario you could repeal HCR. On the other hand I seriously doubt that 2012 will turn out that way. The GOP will have congress; they’ll actually have to propose stuff and govern and based on their utter incoherence so far I’m pretty skeptical that they can pull it off in a way that doesn’t make the tea party flip out.Report
I don’t know where your math comes from but in 2012 will probably have one house of Congress for <2 years. I'm talking about repeal before the 2012 election, though the threat outstanding that if next Congress doesn't repeal Obamacare then Obama or the Democratic nominee (don't assume it has to be Obama) can be thrown out of the White House to prevent a Presidential veto.
Like Boonton and Trumwill on the other thread, I don't think you're getting the full impact of the situation:
http://johnellis.blogspot.com/2010_10_17_archive.html#9048660000480159603
We still haven’t really internalized the scope of our economic problems, especially liberals and Democrats. Once we do they might actually be solvable. As it is, there’s not going to be any traction in establishing safe distance from Sharron Angle or Michelle Bachmann or whoever, like there might be if the actual problems weren’t as pressing.Report
@North- Nothing is going kill the insurance companies that fast. It’ll take years just for the current issues to work through the courts and to see how it works.Report
“Fundamental in our law” is a place Constitutional scholars go when they can’t find what they’re looking for in the text of laws they want to appeal to (such as the Constitution). Not being a textualist, I’m entirely open to courts considering such claims, though I don’t know how it could be adjudicated. I don’t know if Randy Barnett is a textualist. But it should be a problem for a textualist.
Many things might indeed be “fundamental in our law,” but in this case an action/inaction distinction needs to be in order to get Prof. Barnett off the hook for just being a Constitution-in-exile guy with no argument against the IM that doesn’t also invalidate the New Deal and Great Society. Being a serious person wanting to make a serious argument that gets taken seriously, this is something that he very much wants. This should make us suspicious of his claim that the action/inaction distinction is indeed fundamental in our law, though I’m actually inclined to think it is. But I’m not at all convinced by his talk that it is.Report
@Michael Drew,
Remember that this distinction is important in tort law, contract law, criminal law, and commercial law. If we were to scrap it, we would have to reconsider all of them, too.
People said I was radical because I suggested reconsidering the New Deal. But it’s nice to know that I have company!Report
@Michael Drew, I don’t have to revisit things that are based on principles that I agree are fundamental to our law. I’m not a scholar or a lawyer, but I have heard of some principles enough prior to their being useful in discussing a particular politically controversial action to accept that indeed they must be fundamental (though agian, I’m no authority). The act/non-act distinction is not one of those. It seems to ake a lot of good sense. But legal principles don’t become fundamental to law via just making sense. They actually have to be there in the law. I am simply not convinced this is an actually pre-existing legal principle. Maybe it hasn’t need to be, because it was taken as assumed or implicit. but that would still not make it clearly “fundamental to our law.” But again, my antennae on this are pretty much only as sensitive as, “Have I heard of the principle before we started talking about the individual mandate?” And the answer is no. This is a matter for people more informed than I to work out. You and Randy Barnett are more informed than I, but I do not trust that either of you are impartially addressing the question of the actual fundamentality of this principle in our law apart from your view of how it applies to the matter, before coming into discussions of which I had never heard of the principle. Sorry, but that’s just the state of things.Report