Legal Commentary

The Individual Mandate and Applying Versus Inventing Doctrine

By Orin Kerr

In his post on the new district court decision upholding the individual mandate, my co-blogger Randy writes:

I do not believe Judge Steeh relied upon existing Supreme Court doctrine because of his claim that this was a case ?of first impression? and therefore not covered by that doctrine. This presents a new debate: Has the Supreme Court covered the field with its current Commerce and Necessary & Proper Clause analysis, in which case lower courts are bound to hold the Act is unconstitutional because it extends beyond this doctrine? Or does the unprecedented nature of the individual mandate render this a case ?of first impression? requiring new doctrine that lower courts are free to invent? 

I have a very different view of Judge Steeh?s opinion. As I read it, it offers an application of existing Supreme Court doctrine. Randy states that Judge Steeh claimed that this was a case of first impression and therefore not covered by Supreme Court doctrine. But I don?t think that?s what Judge Steeh said. First, Steeh wrote:

The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.

So according to Judge Steeh, the activity/inactivity distinction ?arguably? is an issue of first impression. But a few pages later, Judge Steeh concludes that it?s actually not a new issue at all, citing and quoting Supreme Court precedent

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs? home? grown marijuana was ?entirely separated from the market?); Wickard, 317 U.S. at 127, 128 (home-grown wheat ?competes with wheat in commerce? and ?may forestall resort to the market?); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal).

Thus, on its own terms, Judge Steeh?s opinion seems to me to be relying on existing Supreme Court doctrine. Now, of course you could argue that it?s relying incorrectly on that precedent. But it seems to me that the opinion on its terms is applying Supreme Court precedent, not inventing a new doctrine.

I should add that, in my view, what district courts do with the individual mandate is essentially irrelevant for all but political purposes. The issue in this case is legal, not factual, and an appeal is guaranteed. This means all of the district court decisions are just for show, and the real issue is whether any circuit court panels will get a majority to vote against the mandate, survive en banc challenge, and therefore create a split that prompts Supreme Court review. I personally doubt they will, and I would guess that the Supreme Court won?t review the issue without a split. If the Supreme Court does take the case it seems like a likely 8?1 to me, with Justice Thomas dissenting. But I?m not sure it?s going to get there, so the key for now is to watch for a split that survives en banc review in the circuit courts. 

On the political side, incidentally, I think it?s quite different. In the political realm, district court decisions on the mandate are hugely important. A district court decision striking down the mandate would give added fuel to GOP efforts to repeal the mandate after the mid-term election if Republicans take over the House and (maybe) Senate. All the more true if the opinion includes lots of majestic prose about overreaching government . ?It?s so un-American it?s been struck down as unconstitutional!?, the reasoning would run, with long excerpts of stirring rhetoric featured prominently on Fox News. But that?s a political issue, not a legal one. 

Full post as published by The Volokh Conspiracy on October 08, 2010 (boomark / email).