Buy the health care law? No | Randy E. Barnett

Congress has no power to mandate purchases

By Randy E. Barnett
April 3, 2011

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IMAGINE THAT I tell you 100 things that you may not do tomorrow. For example, you may not run on a treadmill, eat broccoli, buy a car, and 97 other things. While your liberty would certainly be restricted, there would still be an infinite number of things you may still do. Now suppose I tell you 100 things that you must do tomorrow. You must run on a treadmill, eat broccoli, buy a car, and 97 other things. These 100 mandates could potentially occupy all your time and consume all your money. This helps illustrate why economic mandates are so much more onerous than either economic regulations or prohibitions, and why so dangerous an unenumerated congressional power should not be implied.

In 2010, something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company. Now, it is not as though the federal government never requires you to do anything. You must register for the military, you must submit a tax form, fill out a census form, and serve on a jury. And you must join a posse organized by a US marshal. But the nature of these very few duties illuminates the truly extraordinary nature of the individual insurance mandate. Each of these duties is necessary for the operation of government itself; and each has been widely recognized as inherent in being a citizen of the United States.

In essence, the mandate’s defenders claim that because Congress has the power to draft you into the military, it has the power to make you do anything less than this, including requiring that you send your money to a private company and do business with it for the rest of your life. This simply does not follow. The greater power does not include the lesser.

True, the Constitution gives Congress the power to impose taxes. But when it devised the Affordable Care Act, the Senate declined to adopt a new tax-and-spending scheme like Medicare. To date, none of the five district court judges who have considered the constitutionality of the mandate — including the three judges who have upheld it as constitutional — have accepted the theory that it is justified under the tax power. Instead, each has examined whether the mandate is within the power of Congress under the Commerce Clause “to regulate . . . commerce among the several states,’’ or whether, under the Necessary and Proper Clause, the mandate is both “necessary and proper for carrying into Execution’’ its commerce power.

During the New Deal, the Supreme Court used the Necessary and Proper Clause to allow Congress to go well beyond the regulation of interstate commerce itself to reach wholly intrastate activities that are not themselves commerce, but which substantially affect interstate commerce. But in 1995, in the case of United States v. Lopez, it then limited this power to the regulation of economic, rather than noneconomic activity.

Existing Commerce Clause and Necessary and Proper Clause doctrine, therefore, allows Congress to go this far, and no farther. The individual mandate, however, goes beyond the regulation of economic activity to literally regulate inactivity. Rather than regulating or prohibiting economic activity in which a citizen voluntarily chooses to engage, Congress commanded that a citizen must engage in economic activity.

It is as though the federal government had mandated that a farmer grow wheat, or a gardener grow marijuana. The Affordable Care Act did not regulate the activity of obtaining health care. Had it done so, you could avoid the duty to buy health insurance by avoiding the activity of obtaining health care services. Instead, the bill requires everyone to obtain health insurance regardless of whether they ever obtain health care services.

The government argues that health care is somehow different than other types of goods and services. Because everyone will one day need health care and may not be able to afford it, and because emergency rooms are obligated by law to provide care regardless of ability to pay, then it is said to be “necessary’’ to require that all persons purchase health insurance today to avoid shifting costs to others.

But even assuming this claim is accurate, it does not provide a constitutional limitation on a power to impose economic mandates. If the Supreme Court upholds the power to impose this insurance mandate on the people, it will not evaluate the next use of economic mandates to see if that circumstance is similar to or different from health care. Once the power to conscript Americans to enter into contractual relations with private companies is accepted here, it will be accepted any time Congress deems economic mandates to be convenient to its regulation of the national economy.

Look at what is happening. Congress exercises its commerce power to impose mandates on insurance companies, and then claims these insurance mandates will not have their desired effects unless it can impose mandates on the people. By this reasoning, the Congress can prohibit, regulate, or mandate any activity it wills simply by adopting a broad regulatory scheme that won’t work the way it likes unless it can mandate any form of private conduct it wishes.

For 220 years, Congress has gotten along without the power to impose economic mandates on the people. Because so unprecedented a power is neither necessary nor proper, it is unconstitutional.

Randy E. Barnett is a professor of constitutional law at the Georgetown University Law Center.