Academic

The Constitutional Validity of ObamaCare

By Calvin Massey

    In a provocative op-ed in the Washington Post David Rivkin and Lee Casey argue that the requirement that every American purchase health insurance is unconstitutional because the regulated activity is non-economic and has insufficiently substantial effects on interstate commerce.   This conclusion is criticized by Jonathan Adler, on Volokh and ridiculed by Jack Balkin on Balkinization.  Adler's criticism is more on target, in that he notes that after Gonzales v. Raich  the commerce power permits regulation of activities that, standing alone, might not be permissible but which are subject to regulation because their regulation is necessary and proper to the accomplishment of a valid larger regulatory scheme.  No doubt Congress may regulate the market of health care insurance and requiring everybody to buy insurance is necessary and proper to the accomplishment of the scheme.  As Adler notes, if insurers must insure all comers it is necessary and proper to require people to buy insurance before they are ill.  

     All of this illustrates the decay in judicial enforcement of the Constitution's limits on federal power.  Congress has textual authority to regulate interstate commerce; its authority to regulate matters that affect interstate commerce, even those that have a substantial effect on such commerce, is a judicial construct.  This may or may not be a wise construction, but the idea that intrastate non-economic activities may be regulated simply because their regulation is necessary and proper to the accomplishment of a larger regulatory objective virtually eliminates any limits on the commerce power.  In this context the necessary and proper clause should be interpreted as Justice Thomas advocated in Sabri v. United States:  To be "necessary and proper" the means must be more than rationally related to the end, they must be "plainly adapted" to that end.  "To show that a statute is 'plainly adapted' to a legitimate end ... it would seem necessary to show some obvious, simple, and direct relation between the statute and the enumerated power."  It is, of course, entirely possible that the requirement to buy health insurance would meet this more  stringent view of what is necessary and proper.  But maybe not. Consider this possibility:  Our economy is driven by consumer spending; consumer spending has nose-dived so we are in a serious economic recession with high unemployment.  Congress reacts by requiring everybody to buy a car.  Valid?  The cumulative effect of individual failure to buy a car has substantial effects on interstate commerce.  Or, Congress, having bailed out GM and established regulatory  oversight over GM, requires everybody to buy a GM car.  Valid?  Is this mandate necessary and proper to the success of the larger regulatory scheme?  The federal government is into GM for billions; the success of that investment depends on sales of GM cars.  If these hypothetical regulations are valid that conclusion ought to be disturbing.  A federal government with power to do anything is a threat to human liberty.  

Full post as published by The Faculty Lounge on August 23, 2009 (boomark / email).