Epstein on the Commerce Clause

A couple of weeks ago, NYU's Prof. Epstein published this article on Ricochet.

Liberal Judges Won't Defect from Obama Administration's Misinterpretation of Commerce Clause

As Adam Freedman mentioned earlier, the Fourth Circuit heard yesterday oral arguments on the constitutionality of the Patient Protection and Affordable Care Act, aka, ObamaCare.  At one level there was no surprise in the tenor of the questions.  All three judges on the panel were appointed by Democrats,. Judge Andre M. Davis, an James A. Wynn Jr. are Obama appointees; the presiding judge Diana Gribbon Motz is a Clinton appointee.  From their relentless questioning of Mathew Staver, counsel for Liberty University, it is quite clear that no liberal judge will defect from the Administration’s position that a comprehensive system of health care regulation lies within the power of Congress to regulate under the Commerce Clause.

At this point it is useful to quote the language of the clause, so that one can see how far the current debates have strayed from the original constitutional design.  In 1787, the grant of power under Article I, section 8, cl. 3 gave Congress “the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  That language is lost to posterity in the modern formulations of the scope of the commerce power which allow it to extend to all activities within a given state that have “substantial effect” on interstate commerce, even if not part of that commerce itself.

The differences in these two formulations should be evident, because the only reason that ObamaCare survives is because of its effects on interstate commerce, not because it is a regulation of commerce as such, which is what the Constitution, as written, requires.  

In dealing with the appellate argument, the modern interpretation was ground zero for future decision.  Given that massive constraint, the debate devolved into a heavily metaphysical discussion of whether any form of “noneconomic nonactivity” lay outside the scope of the clause.  

The great success of the challengers to this law is that they have squarely been able to put this question on the table, which no one thought possible two years ago.  Their basic point was that it is one thing to regulate how one can dispose of wheat conditionally upon his decision to grow it, but quite another to tell someone that he has to grow wheat, whether he likes it or not.  Concede that distinction, and it is no longer clear that one can force people to purchase insurance, conditional on absolutely nothing.  Hence ObamaCare falls outside even the modern definitions of the Clause and thus fails.

The government’s position is a conceptual argument that the line between inactivity and activity is unintelligible and thus of no constitutional force.  But in fact we can and do draw the line all the time in dealing with ordinary affairs.   For example, no one is under a duty to rescue a stranger if he has not done some act to put that person in danger.  But there is a duty not to hit that stranger in ways that put him in peril.  The activity/inactivity line thus structures our social relations to each other.  Why then dismiss it as incoherent?

So we can understand the line.  But the issue goes to its relevance, and it is on that point that both sides seem to get lost. The government’s position is that we need the mandate to make sure that people don’t free ride on the system.  But the blunt truth is that they need the mandate to make sure that these so-called freeriders provide the subsidy for older people who have more health care problems.  The best way to get them back into the market is to lift from them the duty to subsidize others.

The challengers find it hard to make that point because cross subsidies are endemic in modern law.  It’s difficult to attack these subsidies as such. The government finds it difficult to make the line between action and inaction disappear when it has been an implicit predicate of earlier  legislation.  To ordinary people, the debate will only lead them to hold lawyers in low repute.  Why should such a huge social decision turn on these arcane points?

Yet no other form of discourse is possible.  The current “substantial effects” test has no constitutional foundation whatsoever.  But once it is treated as sacred text, all subsequent discussion boils down to a choice as to whether to continue to countenance a major misguided expansion of federal power, or to draw a line in the sand, even if it is in the wrong place.  My own view on this teaser remains unchanged.  If the courts will not question the substantial effects test, they should at least be willing to consider an ad hoc exception to what it surely a most unprincipled rule.

That won’t happen in the Fourth Circuit where modern constitutional orthodoxy holds firm.  The large question is how the justices of the Supreme Court conceive of their role.  Come hell or high water, the four liberal justices will vote to affirm the legislation.  The question is whether the five conservative justices will think that the Affordable Care Act takes matters one step too far.  Who knows?