What the dissent says


Author: Timothy Sandefur

In his dissent to the decision invalidating the Individual Mandate, Judge Stanley Marcus argues that there’s no logical distinction between the Individual Mandate and other kinds of regulation that Congress has been allowed to enact in the past:

At bottom, the plaintiffs’ argument seems to boil down only to a temporal question: can Congress, under the Commerce Clause, regulate how and when health care services are paid for by requiring individuals—virtually all of whom will consume health care services and most of whom have done so already—to pay now for those services through the mechanism of health insurance? As I see it, the answer to whether Congress can make this temporal jump under its Commerce Clause power is yes.

The economic activity that’s being regulated, in his view, is the active participation in the market for health care services by people who don’t have insurance, and whose use of health care thus raises health care costs. Since “virtually all of us will have the misfortune of having to consume health care services at some unknown point,” Congress can force people to pay for health care before doing so by forcing them to buy health insurance. Judge Marcus emphasizes that Congress enjoys wide discretion in choosing how to regulate something; there is “simply no requirement under the Commerce Clause that Congress choose the least restrictive means at its disposal to accomplish its legitimate objectives…[or] target only those uninsured individuals who will consume health care services at a particular point in time….  It was free to regulate the ‘entire class’ of the uninsured.”

Not surprisingly, Judge Marcus also rejects the meaningful judicial review that the majority used in reaching its decision, and argues instead that the court should use deferential, Congress-can-do-whatever-it-likes rational-basis scrutiny:

the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly. This approach ignores the wide regulatory latitude afforded to Congress, under its Commerce Clause power, to address what in its view are substantial problems, and it misapprehends the role of a reviewing court. As nonelected judicial officers, we are not afforded the opportunity to rewrite statutes we don’t like, or to craft a legislative response more sharply than the legislative branch of government has chosen. What we are obliged to do is to determine whether the congressional enactment falls within the boundaries of Art. 1, § 8, cl. 3…. Rather, all we need to do—indeed, all we are permitted to do—is determine “whether a ‘rational basis’ exists for [what Congress did].” (Raich)

Judge Marcus addresses the Necessary and Proper Clause separately. Relying on the broad language of McCulloch and Comstock, he argues that Congress can do whatever is “‘convenient,’ ‘useful,’ or ‘conducive’ to effectively implementing the Act’s insurer regulations.” Since the Individual Mandate is a necessary subsidy to insurance companies that are denied the right to choose whom to cover, it is therefore a legitimate exercise of the necessary and proper clause. It’s necessary because it violates no explicit part of the Constitution, and it satisfies rational basis scrutiny. “The Necessary and Proper Clause requires nothing more.”

Also, Judge Marcus relies heavily on the Raich “essentiality” theory: “Faced with evidence that the insurance industry would collapse if the Act’s guaranteed issue and community rating provisions were implemented without the individual mandate, Congress had more than ‘a rational basis for concluding,’ (Raich) that the individual mandate was essential to the success of the Act’s concededly valid and quintessentially economic insurer reforms.”

What about the limits on federal power? Upholding the Mandate, he writes would “leave[] fully intact all of the existing limitations drawn around Congress’ Commerce Clause power,” because Congress could still only regulate “economic behavior that has a substantial effect on interstate commerce.” Judge Marcus thinks these are “powerful limits” that would cabin federal authority.  To argue that Congress could force people to buy broccoli, a person would have to argue that

everyone is a participant in the food market; if people buy more broccoli, they will eat more broccoli; eating more broccoli will, in the long run, improve people’s health; this, in turn, will improve overall worker productivity, thus affecting our national economy…. By contrast, the economic problem that Congress sought to address through the individual mandate does not depend on any remote or long-term effects on economic productivity stemming from individuals’ health care choices; indeed, the mandate does not compel individuals to seek health care at all, much less any particular form of it. Instead, Congress rationally found that the uninsured’s inevitable, substantial, and often uncompensated consumption of health care services—of any form—in and of itself substantially affects the national economy.

Judge Marcus also relies on the alleged “uniqueness” of the health care market, which he thinks “would render any holding in this case limited.”

This, unsurprisingly, strikes me as the weakest part of what appears a surprisingly weak dissenting opinion. Obviously the Individual Mandate “does not compel individuals to seek health care”—it requires people to buy health insurance regardless of whether or when or under what circumstances they do seek care, and not, as Judge Marcus claims, simply to make sure that they pay for the health care they receive, since people can still buy their own health care on the side and not use the insurance they are compelled to buy. And it would be quite simple—especially given “rational basis scrutiny”—for Congress to find that a person’s inevitable and substantial consumption of unhealthy food had effects on the national economy, so that people should be forced to buy broccoli. Yet again, the attempt to distinguish the Individual Mandate from a Broccoli Mandate fails.