Author: Timothy Sandefur
Federal Judge Christopher Conner of the
Eastern Middle District of Pennsylvania issued a decision today holding the Individual Mandate unconstitutional. The case is Goudy-Bachmann v. Dep’t. of HHS, and you can read it here (and an amendment to the decision here). Interestingly, the court finds the Mandate unconstitutional while at the same time rejecting the argument that upholding the Mandate would open the door to various other mandates. Judge Conner holds that it is not true that Congress might “compel the consumption of broccoli,” because “Congress is restricted by constitutional text and Supreme Court jurisprudence to the regulation of economic behavior that has a substantial affect on interstate commerce,” because “the truly unique factual circumstances of this case would necessarily render any holding limited,” and because the “informed electorate” would “not countenance” such a thing. One might note that the “informed electorate” never supported the Individual Mandate in the first place—and thus elected a president who said he, too, was opposed to the Mandate—but we’ll put that aside for the moment.
Instead, the court finds that the question should be whether Congress can impose a “pre-conduct requirement to pay in advance” for health insurance. And this, the court finds, is not supported by Wickard or Raich:
Judge Sutton’s conclusion in Thomas More Law Center, that the plaintiffs in Wickard and Raich were regulated prior to their entry in the relevant markets, ignores the affirmative conduct of those plaintiffs in obtaining or producing commodities with an interstate market. Importantly, the respondents in Raich could stop cultivating and possessing marijuana and thus places themselves beyond the scope of the Controlled Substance Act. Roscoe Filburn, the farmer in Wickard, could avoid penalty by simply choosing to grow less wheat, or none at all. Congress can reach the personal production of wheat—a clear activity affecting the interstate market—in an effort to stabilize the wheat market. Congress cannot, however, in order to stabilize that market, force the purchase of wheat by individuals who decide to forego wheat or wheat products, even if Congress legitimately determines that an individual’s decision to not purchase wheat or wheat products inhibits the government’s ability to regulate or stabilize the wheat market. Similarly, Congress may lawfully regulate the interstate market for health insurance and health services, but Congress cannot require individuals who choose not to purchase health insurance or individuals who are not currently seeking or receiving services in the health care market to purchase health insurance in order to stabilize the health insurance market. Congress cannot mandate or regulate in anticipation of conduct that may or may not occur in the future.
The reason is that Congress can only regulate matters that affect interstate commerce—and cannot regulate things that have “‘effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local.’” (quoting the Florida decision.) A person cannot have any effect on interstate commerce before seeking obtain health care services: “Unless and until that point, an individual’s status as uninsured or ‘self-insured’…has no effect whatsoever on interstate commerce.” So the question isn’t so much about the activity/inactivity distinction as it is about whether the government is regulating something that actually does affect interstate commerce—or something that only might, maybe, in the future.
What about the government’s argument that the health care market is unique, so that it can compel participation in that market, whereas it can’t compel people to buy other things? The court finds that the health care market is unique—but that doesn’t amount to a constitutional principle:
The text of the Constitution itself does not admit such a limiting principle. Moreover, the court has been unable to find any precedent, and the parties have been unable to direct the court to any precedent, that permits the expansion of the Commerce Clause authority to regulate individuals prior to their engagement in commercial activity on the basis of the unique nature of the market being regulated. This court is bound by the principles of stare decisis and must reasonably interpret, not create, law.
Goudy-Bachmann is a well-thought out decision that will add to the momentum of the constitutional argument destined for the High Court.