01 Aug 2011 Upholding Constitutionality of Individual Mandate Would Set a Dangerous Precedent

Last week, the Eleventh Circuit Court ruled that the “individual mandate” prescribed in President Obama’s signature piece of health care legislation—”ObamaCare”—requiring virtually every U.S. resident to purchase federally-approved private health insurance is unconstitutional. The Eleventh Circuit’s bristling decision is sure to be heard by the Supreme Court.

Regardless of the outcome before the high court, the real question isn’t simply whether Congress has the power to force Americans to buy health insurance. Instead, the issue is if Congress has this power – what couldn’t Congress do in the name of regulating interstate commerce?

In passing ObamaCare, Congressional Democrats argued that the law fell within Congress’s constitutional authority to “regulate interstate commerce.” Insisting the new initiative was not a tax disguised as a regulation, they cited the Constitution’s “Interstate Commerce Clause” as the legal basis for the requirement, and some, like then-Speaker of the House Nancy Pelosi, openly mocked any suggestion that the individual mandate might somehow lie outside Congress’s enumerated powers.

Opponents of ObamaCare warned—just as openly—that the health insurance mandate represents a radical expansion essentially obliterating the notion that the federal government has enumerated powers. If the Supreme Court rules that the individual mandate is a proper exercise of Congress’s authority under the Interstate Commerce Clause, the republic will suffer a seismic shift in its legal and political landscape jeopardizing the liberties of all Americans.

But why? What’s so special about the Interstate Commerce Clause? And who really cares if the mandate is a “tax” or a “regulation of commerce”? A mandate is a mandate, right? And haven’t political false prophets preached cataclysm and apocalypse before if some bill they opposed made it through the House and Senate? How many times by now was the sky supposed to have fallen?

Depending on the how the Supreme Court rules, the results could be catastrophic.

The unspoken presumption underlying the heated doomsday rhetoric surrounding the individual mandate is the power and persuasion of legal precedent. The point may seem elementary and even perhaps quite obvious, but it goes to the very heart of the current constitutional concerns in the debate over the mandate.

In its decision, the Eleventh Circuit found the individual mandate to be “unprecedented” in U.S. law and jurisprudence. The court observed that “[f]ew powers, if any, could be more attractive to Congress than compelling the purchase of certain products. . . . Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.”

This, said the appellate court, is “telling” and “instructive” because it suggests that until now Congress has assumed that it did not possess such almighty authority to require such purchases. But if the Supreme Court reverses the Eleventh Circuit and accepts the government’s argument that “the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life,” then all of that would change—then there will be precedent.

And precedent is a powerful thing. In law, precedent is what lawyers and judges rely upon to support their claims and arguments. They point to what has gone before, what has been upheld, what has been found legal and just and acceptable in earlier cases in similar situations by other judges. They fashion their arguments, their analysis, and their opinions to conform to that precedent as best as they can.

Precedent is intrinsically valuable in a constitutional framework of limited powers such as ours. Everyone acknowledges that our federal government is and ought to remain a limited government, and that the powers that it exercises should be rooted in some grant of constitutional authority. Thus, once Congress exercises a power and once the Supreme Court has provided its stamp of approval, a firm legal stepping stone has been carved out for others to stand upon when proposing to use that power for some similar purpose or in some slightly different context. This is what opponents of the individual mandate fear most—a new spin on the Interstate Commerce Clause that will allow future lawyers, judges, Congresses, and Presidents to advocate or impose some other future “mandate” on the American people, all the while supported by the constitutional authority to “regulate interstate commerce.”

Of course, it should not surprise us that there is, well, precedent for this concern.

At the turn of the 20th century, in Champion v. Ames, the Supreme Court upheld a federal statute passed in 1895 forbidding all transportation of lottery tickets in interstate commerce. Before this, it had been left to the individual States to decide which articles of commerce should be allowed within the State. Once it was clear, however, that Congress could determine which articles and to what extent they could be transported, the federal police power was born into a whole new regulatory world. Congress wasted little time in passing new legislation. In rapid succession It passed the Animal Contagion Disease Act (1903); the Metals Hallmark Acts (1905, 1906); the Pure Food Act (1906); the Plant Quarantine Acts in 1905, 1912, 1915, and 1917; the Narcotics Acts (1909, 1914); the White Slave Traffic Act (1910); the Insecticide Act (1910); the Apple-Grading Act and the Adulterated-Seed Act (1912); the Serums and Toxins Act (1913); the Warehouse Act and the Grain Standards Act (1916); and the Child Labor Act (1916). The Supreme Court had shown Congress a way to new power. Power hates a vacuum.

By 1917, the American Bar Association observed that “This case was undoubtedly Pandora’s box from which burst forth with amazing speed and ever-increasing velocity the tendency to federalize and centralize [government power]. It was the beginning of that steady, unending, unceasing movement in Congress to stretch far beyond its real meaning and far beyond what any fair construction, however liberal, warranted the Commerce Clause of the Constitution.”

The New Deal and its administrative apparatus quickly followed, and in 1942 the Supreme Court handed down yet another new and expansive reading of the Interstate Commerce Clause in Wickard v. Filburn—a case cited in countless appeals and Supreme Court cases since then. Indeed, Wickard and its line of Interstate Commerce Clause jurisprudence set such a powerful precedent that the Supreme Court held that no federal law exceeded Congress’s power to “regulate commerce” until its historic decision in United States v. Lopez—in 1995!

By then, as one federal judge quipped, the Interstate Commerce Clause had become Congress’s “Hey, you-can-do-whatever-you-feel-like Clause.” How many “commerce clause” statutes did Congress pass between 1942 and 1995? Your guess is as good as mine.

ObamaCare’s individual mandate presents a similar danger articulated in the Eleventh Circuit’s decision: an eventually unlimited federal authority over our most basic and private economic choices and activities. “The government’s position [in supporting the mandate],” said the court, “amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power.”

Implicit in this search for a limiting principle to tether congressional power is the recognition that a future Congress may pass a future mandate and will point back to this mandate as its precedent and legal foundation for doing so. “From a doctrinal standpoint,” the Eleventh Circuit saw “no way to cabin the government’s theory only to decisions not to purchase health insurance. If an individual’s mere decision not to purchase insurance were subject to Wickard’s aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument. Although any decision not to purchase a good or service entails commercial consequences, this does not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause.”

These same concerns over how the Interstate Commerce Clause might be used to impose some new federal mandates or requirements on the public would fade dramatically if Congress had explained from the outset that ObamaCare was a new federal entitlement program that needed to be funded with tax revenues collected from each living, breathing American. A tax to pay for federal health insurance or even health care services might then serve as some kind of precedent for future taxes or entitlement programs, but it could not be used, for example, as a legal stepping stone for future federal mandates or requirements that all U.S. residents must purchase certain commodities, invest in certain industries, drive certain government-subsidized automobiles, install solar panels on their houses, or plant a garden in their backyards. To be sure, Congress could levy taxes to make gas stoves too expensive, fresh vegetables too costly to buy at the supermarket, or foreign cars too dear to lease—and the power to tax is the power to destroy, as the old saying goes.

But death-by-taxes presents a very different set of concerns and political pressures altogether. And then we could debate tax hikes.

By opting to impose ObamaCare and its individual mandate through the Interstate Commerce Clause, Congress decreed that this mandate is not just the normal over-reaching of the federal government. It is not just a tax or an extra fee we ante up for the privilege of living here. The individual mandate, if it is upheld, will set a dangerous precedent with only the most arbitrary—and therefore unenforceable—limits. It will grant to Congress a whole new power unimagined by those who wrote the Commerce Clause, and Congress, in its infinite wisdom, will abuse it.

They’ve done it before; they’ll do it again.

Horace Cooper is a legal commentator and a senior fellow with the National Center for Public Policy Research.