The Case Against the Individual Mandate

It wasn’t a bad dream. HR 3590 passed and has been signed into law.

You may have already noticed that more than two-thirds of States are either working on legislation or filing lawsuits to nullify it or prove the individual mandate unconstitutional. The lawsuits center around whether or not Congress has the authority under Article I Section 8 to compel individuals to purchase insurance from the private sector or face penalties.

However, the major challenge here is that the courts have been quite reluctant to overturn federal law on enumerated powers grounds. While I believe that the individual mandate shouldn’t pass constitutional muster, I think it will be a complete surprise if the Supreme Court rules against it. Then again, they have made some very surprising rulings in the past. See Bush v. Gore for starters.

Recently, the Fifth Circuit surprised everyone when they ruled the Gun Free School Zones Act of 1993 unconstitutional in United States v. Lopez. Even more surprising was that the Supreme Court affirmed the Fifth Circuit based on the commerce clause. Nobody saw those rulings coming.

However, there were several cases regarding the commerce clause over the next few years. However, nobody took Lopez seriously. The lone exception was United States v. Morrison. In that case, the Fourth Circuit overturned certain provisions of the Violence Against Women Act. Once again, the Supreme Court completely surprised everyone by affirming the lower court.

Where am I going with this? I’m trying to make the point that there is at least the slim chance that if the Supreme Court hears the case then they might rule it unconstitutional. But the path to the Supreme Court is more complicated than some think.

In order for these Article I Section 8 cases to make it that far, they will likely need to be argued in the DC, Fifth, or Ninth Circuits. Even then, we have to hope for a panel of some of the more aggressive conservative judges and that a split between the circuits occurs. This will yield the best chance that the case may be heard by the Supreme Court.

Okay, so we get the case to at least the circuit courts. How difficult is it going to be to get a ruling? Either for or against the individual mandate, the courts will have a rather difficult time coming to a decision. Right now, there are precedents that work either way.

The court are going to have a difficult time overturning the individual mandate without also overturning Gonzales v. Raich. While I think that overturning Raich would be a great step towards restoring the Rights of the People and the States, I’m pretty certain that a decision like that would be particularly unpopular for the Supreme Court.

As Randy E. Barnett wrote in his Washington Post article:

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

The problem with ruling the individual mandate constitutional is that it would effectively rule that under the commerce clause if Congress can regulate a particular economic activity then Congress can also require that you participate in said economic activity. Did you understand that? If Congress can regulate it, Congress can force you to do it.

However, if the courts rule the individual mandate as being unconstitutional, then they will not only uphold Lopez and Morrison but also overturn or severely limit Raich and Wickard v. Filburn. Like I stated before, this would definitely be a step in the right direction toward restoring the Rights of the People and the States and returning to an interpretation of the commerce clause that better parallels what the Founding Fathers had in mind.