by Mario Rizzo
I am not an expert in US Constitutional law, but I am not totally uninformed either. And yet (or because of this) I was shocked to see the completely crazy “analysis” that appeared, as an opinion piece, in the Wednesday, November 16th issue of the New York Times. The author is the anti-trust and health law scholar Einer R. Elhauge of the Harvard Law School. I am somewhat relieved to find that he is not a constitutional law expert either.
Nevertheless, the article is notable for how casually it treats the legal issues. The fundamental thesis seems to be that the courts have no role is constraining the federal government in the area of economic regulation, mandates and interstate commerce (or even the absence of commercial activity). The courts should not second-guess the legislative process. (I guess Professor Elhauge has never heard of public choice nor does he think that economic liberties have any claim to be protected by something more than the “will of the people.”)
But none of this is all that strange until you see what a mockery Professor Elhauge makes of constitutional law and how unaware he seems to be of the slippery slope that has transformed our Constitution and the fundamental relations between the federal government and the states. I say “unaware” of this process but I suspect that he is all in favor of the process.
Even this is not so strange. But what is very strange indeed is the joking-quality of his “legal analysis.” Consider (italics added):
Many opponents dismiss this argument because Medicare (unlike the new mandate) requires the purchase of health insurance as a condition of entering into a voluntary commercial relationship, namely employment, which Congress can regulate under the commerce clause. Thus, they say, the Medicare requirement regulates a commercial activity, whereas the new mandate regulates inactivity. But is that a distinction of substance? After all, we don’t have much choice but to get a job if we want to eat.
Even if you accept this distinction, it means that Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity. So the challengers would have to admit that a statute saying that “anyone who has ever engaged in commercial activity must buy health insurance” would be constitutional. This is effectively the same as the mandate, because it is hard to believe that anyone in this nation has never bought or sold anything in his life.
Even if there are a few hardy folks who grow or make everything they need, their activity can still be regulated because it affects commerce. The Supreme Court held in Wickard v. Filburn, in 1942, that growing and consuming your own wheat can be regulated under the commerce clause because it reduces demand for wheat and thus affects commerce. Accordingly, a statute saying, “anyone who has engaged in any activity that affects commerce must buy health insurance” would clearly be constitutional, and cover everyone, just like the new mandate. In the end, the opponents’ argument is merely about how the statute is phrased, rather than about its substance. ….
Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that “anyone who has ever engaged in any activity affecting commerce must buy broccoli.”
So building upon a very bad decision Wickard v. Filburn, the logic of this constitutional reasoning leads to the Bedlam that it all just a matter of how a law requiring the purchase of health insurance is phrased, and whether you have EVER OR AT ANY TIME engaged in ANY COMMERCE (since everything is interstate!). Of course, even Professor Elhauge realizes the absurdity of all this. But for him this works in the direction of almost-anything goes. Sure the mandate is constitutional. But no worries if it is bad, the will of the people will save us.
But not even God will save us from people like Professor Elhauge.
ThinkMarkets 
So by Professor Elhauge’s reasoning, Congress can mandate the purchase of anything, as long as the law is phrased right. This suggests that the Supreme Court’s decision on the health insurance mandate will have implications that go well beyond healthcare.
And although he believes that, at this moment, the federal government could compel us to *buy* broccoli, I take it he does not believe that it can compel us to *eat* the broccoli. But why not? It would have to be something like this: What we injest is an intimate or personal activity to which we have a “fundamental right.” When fundamental rights are involved the state must have a compelling interest in regulating (that is, it must have a very good reason).
But of course they can force us not to injest many things (like marijuana). And even where states have passed medical marijuana laws, the federal government thinks that the decision to take a substance to relieve discomfort is not “fundamental” enough to keep its hands off.
So let’s see where this particular slippery slope takes us — unless, of course, we luck out and the Supremes save us this once.
Actually, the main thesis of the quoted passage is valid, in the sense that we’re already long past the point where federal power under the commerce clause is essentially unlimited — IF previous Court precedent is accepted as binding. IF the feds can force people into medicare and social security, if they can regulate home-grown food for home use and outlaw home-grown marijuana for home use, if they can dictate speed limits and drinking ages to the states, then plenary power is a reality. Nevertheless, there may be a majority on the Court for belatedly drawing some sort of line, and the individual mandate provides an excuse — though perhaps not a very principled one — to draw the line here, without going back and finally stating the obvious, namely, that a large fraction of what the feds do now is and has always been unconstitutional.
I agree that based on previous constitutional cases, there is a good chance that the Court will uphold the individual mandate. But there is excellent legal talent on the other side in addition to over half the states joining the suit. So there is hope.
But what I am trying to convey is that a slippery slope was created during the New Deal and later with the expansive reading of the inter-state commerce clause. And now we a faced with the real possibility of another slide down that slope.
Piling absurdity upon absurdity…
One pro-mandate argument that’s been made is that it is just another tax. The federal government can tax you and use the proceeds to purchase whatever. With this mandate it is in effect using the proceeds to purchase healthcare insurance.
Of course, no advocate of the mandate was willing to call it a tax before the bill was voted on. The public is not likely to take to the mandate if it were described as a tax. After the law passed, the Obama administration started to argue that it is a tax, though discreetly, in official circles.
Dr. Rizzo, I am sorry to say that the approach of the Supreme Court still is very much this,
“The fundamental thesis seems to be that the courts have no role is constraining the federal government in the area of economic regulation, mandates and interstate commerce (or even the absence of commercial activity). The courts should not second-guess the legislative process. (I guess Professor Elhauge has never heard of public choice nor does he think that economic liberties have any claim to be protected by something more than the “will of the people.”)
That is how Courts conduct judicial review. The problem, as almost every legal scholar sees it, is that because the judiciary is unelected, their judicial review powers should be limited — and especially over matters concerning *legislative policy.* Even bad policy, if constitutional, should be upheld. There is no way getting around that argument. So all you can say, if you want to get bad policy struck down, is to argue that it is unconstitutional. Public Choice arguments get you nowhere in the LAW.
So, as you correctly recognize, the issue really focuses on the constitutionality of the individual mandate pursuant to the Commerce Clause. That is what the debate will be about. And as much as you may think New Deal era-thinking has gutted the Constitution, there still is hope — such as the recent case LOPEZ, which significantly limited Congress’s scope to regulate activity under the Commerce Clause.
The BEST account I have read about just what the Commerce Clause means now after LOPEZ can be found in Professor Tribe’s EXCELLENT book “American Constitutuonal Law” 3rd ed. Check that book out from your university and read the section that discusses the Commerce Clause and the LOPEZ case. The lawyers appearing before the Supreme Court will discuss the Commerce Clause very much in the same way as Professor Tribe explains it in his book. That is my prediction.
Prof
You can’t be serious. This stuff is as old as the New Deal. And since the New Deal is firmly enshrined in even the most ‘conservative’ Justice’s mind, this is the logical progression.
What they are saying is the Commerce clause can envelop the whole constitution and usurp it.
Luckily for them.
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