Jeffrey Rosen argues in The New Republic that Solicitor General Verrilli could have made a case to the Supreme Court that there was, in fact, a limiting principle on Obamacare and thus could be upheld as Constitutional. That argument rests on the assumption that the absence of a limiting principle is the only problem with Obamacare’s Constitutionality. It is not. Even were there a limiting principle, you would still face the issue that in our jurisprudence we don’t hold people responsible for inaction. Leaving aside that point, let’s assume that the limiting principle is the main barrier to Obamacare being considered Constitutional. Does Rosen’s argument hold up?
The limiting principle goes something like this: In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women, the Court has drawn a distinction between activity that is truly local and activity that is truly national, in the sense that the states aren’t able effectively to regulate the activity on their own. When it comes to violence against women or guns in schools, states arguably have the will and the resources to respond to these problems.
But when it comes to providing insurance guarantees for the uninsured, any state would be worse off if it tried to solve the problem on its own, because it would end up attracting uninsured people from other states seeking to take advantage of its benefits. Because states know this in advance, most don’t even try to solve the fundamental problems of health care coverage. Indeed, Representative McGovern of Massachusetts—the only state to pass a universal mandate—made a similar argument during the congressional debate over the Affordable Care Act when he said that a national mandate would free Massachusettes from being “forced to subsidize through higher premiums and higher Medicare and Medicaid costs the uncompensated care of people in other states who do not have health insurance.”
The answer is no. Rosen’s arguments are not legal arguments – they are policy positions dressed up as Constitutional analysis. Rosen may be absolutely right that the insurance problem doesn’t work at the state level because any state would be worse of trying to solve the issue on its own. He may be correct that the best way to solve that problem is to have a national system. However, just because the solution may require federal action, it does not follow that the authority to act is granted to the federal government. In the extant case, the proper solution would be to pass a Constitutional amendment, providing that the government may impose a penalty on citizens who do not wish to purchase health insurance. Of course, this is a very difficult task, and one not likely to succeed, but that doesn’t mean that you get to choose an illegitimate means of implementing the chosen policy. The purpose of the Constitution, federalism and separation of powers is precisely to protect against powerful minorities or simple majorities imposing their views on everyone else. That is why we have such a high burden (2/3 or both house, 3/4 of the states) to change the Constitution, and thus change the fundamental rights and responsibilities of citizens.
Rosen is also wrong about the purpose of the Commerce Clause.
In addition to having been endorsed by the Supreme Court in 1937, this principle is also deeply rooted in the original understanding of the Constitution. As Neil S. Siegel of Duke University argues in a forthcoming article about the health care mandate and original understanding, “the Commerce Clause is best understood in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce.” Siegel argues that “to over-come failures to participate in collective action whose effects spill across state borders, the clauses of Article I, Section 8 authorize Congress to require various kinds of private action.”
Conservative justices, who care about the text, history, and original understanding of the Constitution, might have been persuaded by this argument about how the framers wanted Congress to be able to regulate economic free riders. And it would have provided a convincing answer to their hypothetical questions about why the government can’t regulate broccoli, or burials, or cell phones. Unlike affordable health care, the problems of providing healthy food, or burials, or emergency response are ones that a state can solve on its own without becoming a magnet to people from other states.
The Cooter-Siegel formulation of the Commerce Clause, to which Rosen is referring, is an ex-post theory constructed in 2010 in which the authors argue how the Commerce Clause should be interpreted. This formulation ignores the clear intent behind the Commerce Clause, both in its plain meaning and its historical context, to prevent states from favoring their own citizens at the expense of others, and instead offers a justification for broad government based upon an interesting, but clearly incorrect view of Article 1 Section 8’s intent. The authors, in their theory, go so far as to suggest that what prevents the federal government from regulating common crimes, such as assault, is the distinction between whether states can handle the problem on their own or not. This is wildly inconsistent with the absolutely clear intent of the Framers to deny police powers to the federal government and grant them to the states. The failure of states to act, or to be able to act, does not automatically grant police power to the federal government, even if it is a good idea. Should Tennessee all of the sudden find itself with a massive crime problem that is beyond the capability of the state police to handle, it does not follow that the federal government may just step in at will, absent an invitation from the state, and do what it takes to solve the problem. While such action may be desirable, the separation of powers means that such a move would be an ultra vires act.