Why the individual mandate may fall on Commerce Clause grounds


Author: Luke A. Wake

After Raich v. Gonzalez, 545 U.S. 1 (2005), many constitutional scholars thought that Congress' power to regulate interstate commerce was a near limitless power. In Raich, the Supreme Court said that Congress could regulate the non-economic activity of medical marijuana use; the Court held that even non-economic activities could be regulated under the commerce power if their regulation is necessary for the vindication of a larger economic regulatory scheme. That basically means that even non-economic activities can be regulated by the federal government if Congress thinks its necessary to advance some broad economic policy. Under that standard, Congress can regulate almost any action under the Commerce Clause, so long as the regulation does not violate some other constitutional principle.

After that case, most commentators thought that there was no hope for suits challenging Congress' authority to enact legislation under the Commerce Clause; however, that was before Congress passed the health care law. With the enactment of Patient Protection and Affordable Care Act, Congress made an unprecedented move. For the first time in American history, the federal government has sought to force us to buy something. This is not only unprecedented, but there is no support for what Congress has done in case law. The Supreme Court has never suggested that Congress can compel commerce. So despite expansive interpretations of the commerce power over the past century, we may actually see the courts strike down the health care law on Commerce Clause grounds.

So why is the mandate to purchase health insurance so vulnerable to this constitutional attack? Doesn't Congress force us to do things we don't want to do all the time? How is this different than laws forcing us to buy car insurance, or forcing hospitals to treat people in the emergency room without regard to their ability to pay? How is this different than the Civil Rights Act, which forced businesses to serve the public without discriminating against individuals on the basis of their race, sex, religion, etc?

The answer is simple: unlike other federal laws, the individual mandate requirement imposes an affirmative obligation on the individual to take an action. Most laws only regulate our behavior, either restricting, directing or prohibiting activities that are otherwise freely chosen. Some laws impose affirmative obligations to act in a certain way, but only on the basis of some other action that we have chosen.

The mandate is unique in that it imposes a duty upon the individual where the individual has taken no action whatsoever. This matters because the Commerce Clause only authorizes federal regulation of actions which affect interstate-commerce. As such, the mandate – regulating inactivity – cannot be justified under the Commerce Clause. Nor can it be justified under any other theory.

The individual mandate is just flat-out unconstitutional.