Randy Barnett on the Constitutionality of ObamaCare

On Tuesday I was fortunate to be able to attend a talk by Professor Randy Barnett, who was described by one of my colleagues in the introduction as “the mastermind behind the challenges to ObamaCare.” Barnett is an excellent speaker on this subject and I wanted to share with readers of my blog what I learned from his talk.

For those who aren’t familiar with the debate, the legal challenges to ObamaCare have centered on the argument that the legislation’s “individual mandate” — its requirement that each individual purchase a private health insurance plan, meeting certain minimum requirements, or be subject to a fine collected by the IRS — is unconstitutional.

Barnett started by asking the audience to consider the difference in effect of Congress prohibiting you from doing 100 things vs. mandating that you do 100 things. The latter would be far more restrictive of your liberty. He also listed the only examples in precedent of things that the government may require you to do, consistent with the constitution. They are: (1) registering for the draft; (2) submitting a tax form; (3) answering the census; (4) reporting for jury duty; (5) joining a posse, if asked by a federal marshal to do so. The upshot: such mandates are extraordinary, and the language in an opinion regarding the constitutionality of the draft said that mandating it was constitutional only because it was a “supreme and noble duty of citizenship.”

So, can Congress compel us to do whatever it deems is convenient for it to attain its policy goals? Barnett points out that the greater power (mandatory draft) doesn’t include the lesser (e.g., individual insurance mandate). True, Congress can constitutionally tax us and then spend the money, but here the fine is not a tax, it’s a penalty. Barnett explained briefly why this could not plausibly be considered a tax: (1) in a 1996 opinion written by Souter, a penalty was described as “punishment for an unlawful act or omission,” which is exactly what happens with the individual mandate in Obamacare; (2) the legislation lists in one section the various sources of “revenue”, and the anticipated monies from the penalty are not listed there.

Barnett believes that Congress, for political reasons, decided to include a mandate rather than taxing, and justified the mandate pursuant to its powers under the Commerce Clause.

Is it Constitutional for Congress to do this? Barnett says no, and he points out that his arguments do not depend on any sort of Originalist interpretation of the Constitution. Rather, they rely only on existing doctrine concerning the constitution’s commerce clause and necessary and proper clause.

Since the New Deal, the Supreme Court has held that Congress’s power extended to regulating wholly intrastate activities that substantially affect interstate commerce (e.g., growing and consuming wheat on your own land — Wickard v. Filburn). It held this by applying both the commerce clause and the necessary and proper clause. In 1995 in Lopez, the Court limited the reach of this doctrine to economic activity — so Congress could not reach, via its regulatory power, non-economic, intrastate activity. See also Raich, allowing Congress to regulate intrastate economic activity. Thus far, the Court has not said that Congress can regulate inactivity and, with ObamaCare’s individual mandate, what Congress is doing is commanding citizens to engage in a particular type of activity — making a contract with a private company.

In all of law, Barnett says, there is this activity/inactivity distinction and, in order to try and characterize what is being regulated as “activity,” the supporters of ObamaCare have had to continually change their formulations. One formulation: say that what they’re doing is regulating a decision, and a decision is an activity. It’s a mental activity. So, if this argument succeeds, they will be expanding the definition of “activity” in commerce clause jurisprudence to include “mental activity.” Suddenly, a decision not to sell something or not to buy something becomes an activity.(!)

Another formulation: Say that they’re regulating the “practice” of obtaining healthcare services without insurance. Suppose they said, you can’t purchase health care without insurance. They would not do that for political reasons anyway, but they might be able to do that. Here, they aren’t doing that; they’re saying you must purchase health insurance whether you buy healthcare or not. The fact that most people will at some point purchase healthcare services doesn’t convert inactivity into activity.

Barnett thinks those two attempts to formulate what is being regulated won’t be the one primarily relied upon by ObamaCare’s supporters. Instead he thinks they will argue that Congress may do anything it deems “essential to a broader regulatory scheme,” and here, they are regulating the insurance business which, under current doctrine, they may do.

Barnett argues, however, that there is no such doctrine that allows Congress to do anything it deems essential to a broader regulatory scheme. This language apparently came from a Scalia concurrence in Raich, which itself relied upon dictum in Lopez. Scalia said, in concurrence, that Congress can reach non-economic activity when it’s essential to the regulation of interstate commerce. But Stevens’ opinion said the activity at issue was economic activity.

Barnett predicts that, if the Supreme Court was inclined to try and uphold the legislation, it would feel compelled to provide some limit on the scope of the new power it was granting. (After all, ours is supposed to be a government of limited, enumerated powers). And he thinks the most obvious place to look for a limit the activity/inactivity distinction. It provides a natural limit for Scalia’s theory, should the court choose to adopt it.

What limiting principles have been suggested by the government in support of ObamaCare? First, they’ve argued that health care is somehow different from any other market good or service. Because everyone will need it at some point, and Emergency Rooms are required to provide it, we must avoid the cost-shifting that is going on now. Barnett argues, in response, that this does not provide a constitutional principle that the Supreme Court can use to limit the power. He says the Court has traditionally avoided making factual distinctions such as this. He thinks that, if this theory is accepted, Congress will be able to mandate conduct of us whenever it thinks it convenient for its ends.

Second, the government has argued that a limiting principle would be provided by liberty and the due process clause. Barnett says this is no answer; it’s the equivalent of saying the First Amendment will provide a limit on this power. This is, in effect, a refusal to provide a limit on an enumerated power. Moreover, if those are the only limits, then the federal government’s power becomes as broad as the state government’s police power, which itself is limited only by these. Barnett thinks this sort of approach has been consistently rejected by the Supreme Court, so that a better formulation of the limits to the new doctrine that would be created would be necessary. Barnett also points out that the due process is not currently being used as a protector of liberty anyway, so saying that the due process clause will provide a limit is the same and saying the power is limitless.

Barnett also mentions the case of Printz v. U.S., which considered legislation requiring local sheriffs to run background checks before gun sales. The Court held that a mandate on an official of the state’s executive branch was unconstitutional, that it violated state sovereignty. Scalia rejected a necessary and proper clause argument in that case and said it was a usurpation of power. So, existing doctrine does restrict commandeering of state government officials. Barnett then draws the analogy between commandeering state government officials and commandeering individuals; the latter rejects the principle of popular sovereignty.

In summary, if the legislation is upheld, Barnett thinks there will not be an adequate limiting principle to whatever new doctrine is necessary to do this, and Congress will have all the discretionary power of a king. If the Court chooses to strike it down, no other law will be affected by the doctrine it will formulate in doing so (which he thinks would rest on the activity/inactivity distinction).

Professor Larry Rosenthal, in response, admitted that to make his argument he would have to rely on a “normatively desirable vision of the constitution” and rejected the activity/inactivity distinction as “formulaic.” He thought what we’ll be required to do under the individual mandate was not much different than filling out a tax form, which we’re required to do. He proposed a “rationally related” sort of test (citing Comstock), and thinks the mandate would pass it.

[Response I thought of, not that it’s profound: When you’re required to fill out a tax form, you’re required to give information (and money) to the government; here you’re being required to engage in a contract with a private company.]

Barnett, in his reply, reemphasized the fact that, if the Court upholds the legislation, there would be no limit on the things to which this sort of reasoning might be applied. We’d be toast (my words). He thinks the analogy to filling out a tax form is not a good one; that this is more like requiring you to fill out a tax form every day. Also, he thinks the Court should adhere to precedent of allowing mandates only when it’s conduct necessary for government to work, not simply to solve a problem that Congress created for itself because of Medicare, Medicaid, requiring hospitals to provide free E.R. treatment, etc. With all these things, government has distorted the market for health insurance to such an extent, that for the young and the healthy, it’s a bad bet. No one wants to take it, and their answer is to force us into taking a bad bet. In effect, Congress wants to impose a mandate on everyone in order to clean up a mess it’s made in a way that seemed politically palatable at the time (vs. outright socialized medicine).

Barnett also has no problem embracing a “formulaic” distinction — we need a bright line telling us what Congress can do, and what it can’t. “Health care is different” will not provide a principle that can be applied in later cases.

My reaction: I was impressed, and I hope he’s right, that the Supreme Court will agree that ours is a government of limited, enumerated powers and, if they allow the individual mandate, they will be contradicting this fundamental principle. I only wish that the Commerce Clause wasn’t written the way it was, so that we wouldn’t be in the mess in the first place!