In his concurring opinion in United States v. Lopez, Justice Clarence Thomas urged the Supreme Court to temper its Commerce Clause jurisprudence "in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause." After two decades of silence, President Barack Obama's health care legislation has given the Supreme Court an opportunity to restore common sense to the Commerce Clause.
In light of the ruling by the US Court of Appeals for the Sixth Circuit finding that the individual mandate is a proper exercise of Congress's Commerce Clause power, it is clear that the Supreme Court will have to overturn or temper its case law, especially Wickard v. Filburn, if it wants to invalidate the individual mandate.
The Sixth Circuit ruling garnered attention because Judge Jeffrey Sutton, a George W. Bush appointee, who wrote the controlling rationale, held that under current case law the individual mandate is constitutional. Judge Sutton's written opinion reveals a judge who felt forced to uphold the law because of the way that Congress and the Supreme Court have distorted the original intent and meaning of the Commerce Clause.
Wickard is the exemplification of the Commerce Clause run amok. In this case, the Supreme Court held that Congress could limit the amount of wheat a farmer produced for his own use under the guise of regulating interstate commerce. On its face, this seems absurd. How can something be part of interstate commerce when it is intended solely for personal consumption? Thanks to then-recent cases, such as United States v. Darby and NRLB v. Jones, the Supreme Court held that Congress could regulate anything that "exerts a substantial economic effect on interstate commerce."
This is why from 1937 to 1994 not a single law was struck down for exceeding Congress's Commerce Clause power. The two major cases that struck down Commerce Clause regulations since 1994, Lopez and United States v. Morrison, were invalidated because they regulated non-economic criminal activity and dealt with criminal statutes.
However, as Judge Sutton notes in his opinion, the health care bill is easily distinguished from Lopez and Morrison since Congress is regulating economic activity because health care costs consume nearly 20 percent of our gross domestic product.
Judge Boyce Martin, who wrote the court's opinion, also cited Wickard when he held that "Congress may also regulate even non-economic intrastate activity if doing so is essential to a larger scheme that regulates economic activity." Clearly, an individual mandate is essential to the health care bill's larger scheme of regulating the health care industry. As the Obama administration has argued, without the mandate people would wait until they were sick to purchase health insurance and the system would be unsustainable.
Furthermore, under cases such as Wickard and Lopez, Congress can regulate any activity if it has a rational basis for believing that the activity "substantially affects" interstate commerce. Since congressional action almost always passes a rational basis test, and since almost everything that involves economic activity "substantially affects" interstate commerce, the individual mandate appears to be constitutional under current case law.
Therefore, Judge Sutton believed the only choice he had under cases like Wickard was to uphold the individual mandate. According to Judge Sutton, "if, as Wickard shows, Congress could regulate the most self-sufficient of individualsthe American farmerwhen he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it." A careful reading of Judge Sutton's opinion, however, shows that he is not convinced that the Supreme Court will or should uphold the mandate. The Supreme Court, he writes, "can decide that the legend of Wickard has outstripped the facts of Wickardthat a farmer's production only of more than 200 bushels of wheat a year substantially affected interstate commerce. A court of appeals cannot."
The argument that the health care bill can be distinguished from Wickard because it regulates inactivity is not very persuasive. As the Obama administration and Judges Martin and Sutton point out, all Americans at some point are going to use the health care system. Therefore, Congress is not forcing them to buy medical careonly to regulate how they pay for it and ensure that they pay for it in a way that does not shift costs onto others.
The only way the inactivity argument might work is through an as-applied challenge, as Judge Sutton suggests. For example, a challenge could be brought by someone who had the money to pay his medical costs out of pocket but was forced to buy health insurance to pay his bills. The plaintiff could argue that this would be similar to Congress telling everyone who drives that they have to buy a particular type of car.
This argument is still likely to fail because Congress is not forcing this man to seek health care; it is only regulating the manner in which he pays for it. Under current case law, there is a strong argument for the mandate's constitutionality because "the provision regulates economic decisions regarding how to pay for health care that have substantial effects on the interstate health care market."
As Judge Sutton correctly points out, under Wickard as it is currently interpreted, Congress can force Americans to buy products they do not necessarily want: "is it any more offensive to individual autonomy to prevent [Filburn] from being self sufficient when it comes to supplying feed to his animals than an individual when it comes to paying for health care? It seems doubtful that the Wickard Court would have thought so. See Wickard (acknowledging that the law 'forc[ed] some farmers into the market to buy wheat they could provide for themselves')."
If the American people fully understood the case law on this issue, most would agree with Justice Thomas's opinion in Lopez that the Supreme Court's jurisprudence "has drifted far from the original understanding of the Commerce Clause." This drift has not been a positive development. The Commerce Clause has been distorted to give Congress the power to pass a broad set of laws that it may not have the power to enact. The text of the Commerce Clause says that Congress can "regulate Commerce with foreign Nations, and among the several States." The various different tests for what "affects" or "impacts" interstate Commerce are all inventions of the Court, and they have gone too far. The Supreme Court's interpretation of the Commerce Clause has given too much power to the federal government and has disrupted our carefully constructed system of checks and balances.
Those who disagree with Justice Thomas must answer the simple question he posed in Lopez: If the Framers intended Congress to be able to regulate anything that "substantially affects" interstate Commerce, why does the Constitution grant Congress the power to enact bankruptcy laws, or coin money and fix the standard of weights and measures, or punish counterfeiters of United States coin and securities, establish post offices and post roads, or to grant patents and copyrights, or to punish Piracies and Felonies committed on the high Seas? All of these activities "substantially affect" foreign and interstate commerce. The Framers wrote these provisions into the Constitution because they never intended the Commerce Clause to give Congress the power to regulate everything that substantially affects interstate commerce.
As Justice Thomas stated in Lopez: "[p]ut simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of [the Commerce Clause] that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation."
Whether or not the American people support President Obama's health care law, they should hope the Supreme Court takes Justice Thomas up on his invitation to temper its jurisprudence and restore common sense to the Commerce Clause.
David Meyers is a regular contributor to the Daily Caller, and has also provided commentary for outlets such as National Public Radio, the Star Ledger, and Renewable Energy World.
Suggested citation: David Meyers, Commerce Clause Jurisprudence and Original Intent in Health Care, JURIST - Dateline, July 7, 2011, http://jurist.org/dateline/2011/07/david-meyers-commerce-clause.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org