Legal Commentary

Drawing Lines in the Commerce Clause Debate on Health Care Reform

By Orin Kerr

I?ve generally stayed at the periphery on the debate over the constitutionality of health care reform, mostly because it?s not something that I particularly enjoy blogging about. As I see it, a lot of the blogging about the legal issues are a weird mix of actual legal analysis and efforts to influence the broader political and legal culture. That mix that isn?t really my cup of tea. But I do have a question for those who believe that the individual mandate exceeds Congress?s commerce clause power under existing law: How much of a statutory nexus to interstate commerce would Congress have to add in order to change your mind?

I ask that because Congress often adds some sort of statutory ?hook? when it is regulating at the edges of the Commerce Clause. The hook adds an explicit requirement of some connection to Interstate commerce, even though it is understood by everyone that the hook is there just to make sure the statute is constitutional rather than out of a genuine interest in regulating interstate commerce. My question, for those who think the individual mandate exceeds the Commerce Clause power, is how much of a hook would be needed to make the mandate constitutional?

An example might be helpful. In 2006, Congress enacted the Sex Offender Registration and Notification Act (?SORNA?), codified at 18 U.S.C. 2250(a). Congress?s goal was to punish individuals for failure to register as sex offenders. But failure to register as a sex offender based on a state law conviction doesn?t seem to have any connection at all to interstate commerce: Not only is it regulating inaction, rather than action ? a distinction Randy might point out ? but it is also addressing something without any connection to commerce. So Congress added a hook: If you have to register as a sex offender based on a state criminal conviction, the regulation applies to you only if you either cross state lines, or enter, leave, or reside in Indian country. So formally, it?s traveling across state lines without having registered as a sex offender that is punished. The circuit courts have held unanimously (at least so far) that this prohibition is within the power of Congress to regulate Interstate commerce. See, e.g., United States v. Guzman, 591 F.3d 83 (2d Cir. 2010); United States v. George, 579 F.3d 962, 966?67 (9th Cir. 2009); United States v. Whaley, 577 F.3d 254, 258 (5th Cir. 2009); United States v. Gould, 568 F.3d 459, 470?72 (4th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir. 2009); United States v. Hinckley, 550 F.3d 926, 940 (10th Cir. 2008); United States v. May, 535 F.3d 912, 921?22 (8th Cir. 2008).

So my question is, what is the minimum statutory hook that would make the individual mandate constitutional? Presumably under the SORNA line of cases, it would be within Congress?s commerce clause power to punish crossing state lines after failing to purchase health care insurance. But what about some narrower hook, like failing to purchase health care insurance while having crossed state lines at some point in the past? Or failure to purchase health care insurance while traveling on interstate roads? Such a prohibition might look odd, obviously, but my point is only to get a sense of where readers who object to the constitutionality of the individual mandate see the constitutional line. In your view, what would be the minimum statutory hook to save the constitutionaliy of the statute?

Full post as published by The Volokh Conspiracy on April 26, 2010 (boomark / email).