There’s often so much to be gleaned from reading the opposition. Especially when it’s writing that is heavier on moderation and lighter on zealousness. Such is the nature of James B. Stewart’s recent column in the NYT about the individual mandate. A few things in particular struck me, so in the name of brevity I will list them and my reactions.
With famed hospitals like the Cleveland Clinic mounting national ad campaigns and health insurers operating in national markets, there would seem to be little argument that health care affects interstate commerce and that one person’s decision to buy or not buy insurance, just like one farmer’s decision to plant wheat, would affect a national market. Congress has estimated that health care services and insurance account for 17 percent of the gross domestic product and amount to more than $2 trillion annually.
Economic relationships are extraordinarily complex. But at a proximate level, people purchase insurance from state-level providers. It seems to me that efforts to quantify national spending are just adding across economic relationships that end at state lines. I don’t know how important this is to the Court, but it strikes me that if insurance was a truly national market, there would be a better case to be made under the Commerce Clause. The irony here is that opening up insurance across state lines is a health care reform proposal pushed by conservatives.
They’ve argued that a ban on individual activity that, magnified in the aggregate, might affect interstate commerce (like wheat farming) is fundamentally different from requiring someone to do something or face a penalty, as the health care legislation does. A lower court judge ruled that “inactivity” — the failure to buy health insurance — by its very nature cannot affect interstate commerce.
Stewart goes on to say that some scholars find this distinction to be silly. I can’t speak for the legal treatment, but I think it is a crucial philosophical distinction. Much of the classical liberal notions of liberty that informed the Constitution were negative and aimed at preventing unwarranted coercion against people. The law might be silent on prohibition of something versus compulsion toward something, but this clearly feels different and more extreme, and I think that’s very much a product of our philosophical tradition. Whether it’s right or wrong is ancillary to the fact that it seems compelling and probably salient to Originalists who are concerned with the Founders’ notion of economic liberty.
Mr. Verrilli was trying to make the point that a decision not to buy broccoli doesn’t increase the price others must pay for broccoli in the same way that a decision to forgo health insurance increases the premiums others must pay for health insurance. But it seems to me that a succinct answer to Justice Scalia’s question is that the commerce clause would not limit Congress’s ability to regulate broccoli — if members of the House and Senate were crazy enough to pass legislation requiring all of us to eat green vegetables and if that were deemed a rational way to regulate commerce. The same could be said of health clubs. [emphasis mine]
I gotta give Stewart so much credit for owning this, but there’s a great reason why Verrilli and other acolytes of ACA on the left are not going to admit this. It is suggestive of a coercive power on the part of the government that few are comfortable with. Stewart suggests there’s little fear that an elected body would do such a thing but I see no reason to believe that so soundly. While there’s less incentive for Congress to pass such legislation directly, it has shown a marked willingness to outsource regulatory power to the bureaucracy. Also, while Stewart feels comforted, many Americans are against the very idea that Congress should have such a power, regardless of intent to exercise it.
The commerce clause was a response to the chaotic and often conflicting state regulations that hobbled the nation under the Articles of Confederation. Its interpretation over the ensuing two centuries has wisely reflected the growing nationalization and globalization of economic activity and, by doing so, has promoted economic growth.