Tuesday, July 10, 2012

On The (Conservative) Distinction Between Commerce and Non-Commerce

Several scholars who agree with the result in the Obamacare decision have nonetheless criticized the Court's holding that Congress lacks the authority to coerce individuals into purchasing health insurance against their will.  (See this excellent explanation by Thom Lambert at Truth on the Market of why the Commerce Clause ruling is a holding.)  In particular, scholars claim that five justices (Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas and Alito) erred when they held that the Commerce Clause does not empower Congress to coerce such purchases.

Two examples of this reasoning, from a debate on Scotusblog, will suffice.

"Chief Justice Roberts still expressed the view that it would not be permissible under the commerce power. "Five justices took the position that there is a distinction between Congress regulating activity as opposed to inactivity. It is unclear how often this will matter, but the flaw in the argument is that everyone is engaged in economic activity when it comes to health care. Individuals either are purchasing health insurance or they are self-insuring. Congress was regulating the latter to ensure that health care is more likely available for all."

"The fact is that not since 1937 has the Court turned down the use of the Commerce Clause as a basis for Congressional intervention in a major national economic concern — which of course neither the Gun-Free School Zones Act nor the Violence Against Women Act were. Activity/inactivity is a new basis for limitation and has no anchor in our jurisprudence. That is why Roberts’s opinion was not conservative but radical. I have my doubts about the political and economic virtues of the ACA, but am appalled at this radically reactionary new doctrine."

Both of these scholars confuse the issue by asserting that the Court's opinion rests upon a distinction between "activity" and "inactivity."  This assertion is incorrect.  Instead, the Court's opinion rests upon a distinction between actual "commerce" and the absence of commerce, only the former of which Congress is empowered to regulate under the Commerce Clause.  This is a distinction that is, in fact, "firmly anchored in our jurisprudence" and, of course, the text of the Constitution.  In Gibbons v. Ogden, 22 U.S. 1 (1824) Chief Justice John Marshall explained that the Commerce power entails the power to "to prescribe the rule by which commerce is to be governed."   As Chief Justice Roberts explained, and as previously explained on this blog, this defintion presumes the existence of commerce to be regulated.  Absent such commerce, the Commerce Clause is no more a source of authority to compell commerce than it would be a source of power to regulate the rules of hopscotch.

It is thus no surprise that neither scholar cites a single example in which Congress has employed the Commerce Clause to require individuals to enter a commercial transaction.

It will not do, as Professor Chemerinsky claims, to recharacterize failing to purchase health insurance as "self-insurance."   Of course it is, as this blog has previously explained.  Still, an individual who self-insures may never engage the health care system at all.  Or, he or she may only engage the health care system sporadically, over the years.  The choice to purchase health care, if needed, out of one's own pocket is not "commerce."  If it were, then Congress could recharacterize an individual's decision to walk to work instead of purchasing a car as "self-transportation" and rely upon this characterization to compell individuals to purchase automobiles or other modes of transportation against their will.  (Presumably proponents of such "regulation" would point out that individuals without cars sometimes engage the transportation system by, saying, taking a taxi or a bus.)  But, as Chief Justice Roberts explained, embrace of this principle would grant Congress an unprecedented and vast power to direct individual behavior, thereby undermining the liberty-protecting virtues of the enumeration of Congressional powers.    Or, to paraphrase Professor Fried, Professor Chemerinsky is proposing a "radical[] reactionary new doctrine."

It is of course true that failure to engage in commerce is "inactivity."  But so is failure to engage in piracy, for instance.  Still, if Congress attempted to declare all individuals who declined to purchase health insurance guilty of piracy, the Court would, one hopes, unanimously invalidate such an enactment.  Such a decision would not rest upon a new or "radical" distinction between "inactivity" and "activity," even though failure to engage in piracy is a form of inactivity.  Instead, the decision would rest upon a tried and true distinction between "piracy" and "non-piracy," only the former of which is within Congress's power to punish as "piracy."  In the same way, the Court's invalidation of the Federal attempt to compell  the purchase of health insurance rests upon a tried and true distinction between "commerce" and "non-commerce."  

As a result, the Court's failure to validate the coercive individual mandate was in no way "radical" or "reactionary," but instead quite conservative, in that it conserved the allocation of authority between the nation and individuals.