What Can’t Congress Do Now?

If the federal government can force you to buy health insurance merely for being alive — on the theory that your inaction, while stubbornly remaining alive, has indirect effects on interstate commerce — then what can’t the federal government force you to do?

It’s a question I noted Randy Barnett asking a couple months ago, with some added salience now that a federal judge has ruled the individual mandate unconstitutional. Others have been asking similar questions, including Megan McArdle and Radley Balko.

The American left would like very much to find good answers, and Ian Millhiser proposes one: The federal government can’t prohibit murder, he says.

My first reaction: “Oh good! My liberties are intact, and we have a government of limited powers after all!” The sarcasm doesn’t come across well in print, but it’s there. If the only limits on federal power are those that stop it from doing something totally superfluous, then we’re in big, big trouble. (Also, this doesn’t really answer the question, because a prohibition on murder doesn’t really prevent the federal government from compelling an arbitrary number of other positive actions from the citizens. Presumably it prevents us from being compelled to commit murder, but that’s not very reassuring.)

My second reaction: “Like hell it can’t.” Not that it matters — preventing the feds from stopping murders matters remarkably little to questions of individual liberty — but it’s plausible that the federal government might be allowed to prohibit murder, at least on current constitutional theory, because murder rather obviously has indirect effects on interstate commerce. In this respect it’s like everything else in the known universe, thanks to Wickard v. Filburn.

Backed into a corner — surely he realizes that’s where he is — Millhiser brings out U.S. v. Lopez and U.S. v. Morrison, arguing that the doctrine of indirect effects really does have some limits after all.

Is he right? It’s hard to say.

U.S. v Morrison struck down the Violence Against Women Act; Millhiser comments (I suppose approvingly):

[I]f Congress can’t prevent violence against women, it follows that Congress also could not prevent other forms of violence, which is why a federal law criminalizing murder or assault is largely off the table. Congress could enact a limited ban on murder incidental to some of its other powers — because Article I of the Constitution empowers Congress to establish post offices, for example, Congress could make it illegal to kill or assault a postal worker during while they were engaged in their official duties — but a blanket federal law forbidding all murders is right out.

Yet these cases, both decided over ten years ago, have been without any serious judicial consequence in the meantime. The conservative, pro-devolution justices who supported them have been replaced by conservative, anti-devolution justices, and that makes all the difference. Given the change of personnel, these cases aren’t very good precedent for anything, and one can easily argue that they are inconsistent exceptions in current jurisprudence, not solid foundations for any constitutional reasoning.

I’m not just speaking hypothetically, either. This line of cases certainly didn’t carry the day in Gonzales v. Raich. As Jonathan Adler notes in his article titled “Is Morrison Dead?”

Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the “substantial affects” test, that attenuated connections between a regulatory scheme and interstate commerce exceeded Congress’s limited and enumerated powers, and, perhaps most importantly, that judicial review should serve as the ultimate check on overly broad assertions of federal power, it may now be a dead letter.

That was five years ago. Nothing in the meantime suggests any other conclusion. If Congress can prohibit smoking non-commercial pot in the privacy of one’s own home, why can’t it prohibit murder? Raich held that the indirect effect being regulated was on the interstate market for commercial pot, and that it mattered not one bit that commercial pot happens to be illegal.

Committing non-commercial murder surely has an indirect effect on the market for commercial murder, doesn’t it? And the murdered individuals would have participated in interstate commerce, if only they had not been killed! (Don’t laugh. That’s just how the indirect effects doctrine works. It really is that crazy.)

Amusingly, both Lopez and Morrison were also condemned, not praised, by left-leaning groups when they first appeared. Conservatives and libertarians have been dismissed as crackpots for daring to suggest that they might be important, or that limits to federal power might actually be a good idea. Notably, we’ve been condemned by one Ian Millhiser.

I’ll be charitable, though, and assume Millhiser has had a sincere change of heart since just this summer, when he wrote:

Yet Justice Thomas claimed in three separate cases—U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich—that this “substantial effects” test is “at odds with the constitutional design.” It’s difficult to count how many laws would simply cease to exist if Thomas’s view of the Constitution ever prevailed, but a short list includes the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, much of the Family and Medical Leave Act, and the most basic worker protections such as the minimum wage, overtime laws, and the regulation of child labor.

What a difference five months makes. Morrison and Lopez have become great, even necessary… for the expansion of federal power! It seems that anything is good, as long as that’s the end result.

(I’m not at all convinced, incidentally, that we must necessarily go as far as Millhiser suggests in reversing Commerce Clause jurisprudence. The distinction between compelled positive actions and prohibited actions is still a meaningful one, I think. Overturning the individual mandate is thus by no means the start of a slippery slope.)