Why Obamacare is Constitutional

This is a little late to the game, because I've compiled it from old e-mails, but I wanted to make sure I had up here a more detailed discussion of the whole Obamacare issue. A warning: Everything I argue below is probably stated more clearly an succinctly by Akhil Amar in a recent interview, but here I go anyway.

Here's the fundamental syllogism:

1. Under Supreme Court precedent, anything regulating commerce that is not otherwise affirmatively forbidden by the Constitution is within Congress's power.
2. The ACA regulates interstate commerce.
3. Nothing in the ACA is affirmatively forbidden by any provision of the Constitution.
4. Therefore, the ACA is constitutional.

Here's the longer-winded version:


(1) Since 1937, when the Supreme Court started to accept the validity of the New Deal, the Supreme Court has said that Congress has the power to regulate all (a) items that move in interstate commerce, (b) channels or instrumentalities of commerce (think railroads), (c) or activity that has a "substantial economic effect" on interstate commerce. Furthermore, Congress's power to regulate commerce also extends to all regulation "necessary and proper" to regulating commerce. What this has meant since the first case to interpret it (upholding the Bank of the U.S.), was that anything Congress rationally thinks is useful ("necessary") to regulating interstate commerce and not otherwise forbidden by the constitution ("proper") is within Congress's power.

(2) Nobody disagrees that the ACA regulates interstate commerce. Even if it wasn't obvious that regulating health insurance has a "substantial economic effect," the Supreme Court has held that the "substantial economic effect" test allows everything from environmental legislation to civil rights laws. (Yes, it's a stretch from the text, but for 75 years, its been the basis for the entire U.S. Government.) If the ACA isn't commerce, neither is most of the federal government.

(3) Here's the important part: No provision in the Constitution affirmatively forbids the individual mandate. If the Constitution forbid mandates as a matter of individual liberty, then Massachusetts couldn't do it either.

(4) Therefore, under every single case decided on the Commerce power in the last 75 years, Congress can impose the individual mandate on people. The only way to strike it down would be to create a *new test* -- something that the Supreme Court can obviously do, but which would nonetheless be going against 75 years of precedent.

What's the argument that the opponents of the ACA have, then?

In the aggregate, everything has a "substantial economic effect." The possession guns near schools affects the economy, however indirectly. Domestic violence certainly affects the economy. Yet, the Supreme Court has struck down laws that attempted to criminalize gun possession near schools or make a federal tort out of domestic violence. Things that affect the economy can still be off-limits to Congress, if they're sufficiently indirect or unrelated to commerce. Similarly, even if the problem of uninsured people affects the economy, the opponents of the ACA argue that failure to buy insurance only has an "indirect" effect on interstate commerce (and is thus off-limits to Congress), rather than a "direct" effect.

This is very appealing to certain Justices. Justice Thomas hates all post-1937 jurisprudence and is biding his time until he can turn back the clock. Justices Scalia and Kennedy have both joined opinions suspicious of federal power, and they're both very interested in coming up with a way to draw the line that circumscribes federal power. So, the ACA provides an opportunity for the conservative justices to do what they've always wanted to do.

To me, this whole argument is wrong both as a matter of fact (i.e., having people buy insurance directly regulates the economy, and is not indirect in any way), but also as a matter of means-end reasoning. With Guns-Free-School-Zones Act, the point was not to regulate commerce, but to protect children. With the Violence Against Women Act, the point was not to regulate commerce, but to stop domestic violence. On the other hand, with the ACA, the very goal is to regulate the insurance industry. Congress doesn't have a hidden ulterior motive that they're masking under the guise of "commerce." Of all the cases in which to argue that there's no regulation of interstate commerce going on, this is a particularly silly one.

There's one problem here, though. Based on the discussion above, how is something like the Endangered Species Act constitutional? Obviously, the point of the ESA is not to regulate commerce, but to protect endangered species. And regulating the killing of endangered species is not exactly something that has a direct effect on commerce.

The answer, unfortunately, is that it's probably not. This is one of those dirty little secrets that lawyers don't like to talk about, but a lot of environmental laws are pretty constitutionally suspect, but they're very popular, and nobody wants to be the judge to strike them down.