Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional

Georgetown University Law Center Georgetown University Law Center

Scholarship @ GEORGETOWN LAW Scholarship @ GEORGETOWN LAW

2010

Commandeering the People: Why the Individual Health Insurance Commandeering the People: Why the Individual Health Insurance

Mandate is Unconstitutional Mandate is Unconstitutional

Randy E. Barnett

Georgetown University Law Center

, rb325@law.georgetown.edu

Georgetown Public Law and Legal Theory Research Paper No. 10-58

This paper can be downloaded free of charge from:

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http://ssrn.com/abstract=1680392

5 N.Y.U. J.L. & Liberty 581-637 (2010)

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Part of the Constitutional Law Commons, and the Health Law and Policy Commons

581

THE SIXTH ANNUAL

RIEDRICH A. VON HAYEK LECTURE

OMMANDEERING THE PEOPLE:

HY THE INDIVIDUAL HEALTH

INSURANCE MANDATE IS

UNCONSTITUTIONAL

Randy E. Barnett

Carmack Waterhouse Professor of Legal Theory, Georgetown University Law

Center. A highly condensed version of the analysis presented in this article was de-

livered as the F.A. Hayek Lecture at New York University School of Law on October

14, 2010. I thank Michael McConnell, Susan Low Bloch, as well as participants in a

faculty workshop at Georgetown Law, for their comments on an earlier version of

this paper. I am also grateful to Anastasia Killian for her diligent research assistance.

Permission for instructors to copy and distribute for classroom use is hereby granted.

[As this article went to press, Judge Roger Vinson of the United States District Court

for the Northern District of Florida issued his opinion holding The Patient Protection

and Affordable Care Act unconstitutional. I have refrained from adding citations

throughout this Article to the corresponding passages of his fine opinion. Instead, I

have confined myself to adding two footnotes simply indicating where my analysis

might usefully supplement his, both of which concern the scope of the Necessary

and Proper Clause.]

New York University Journal of Law & Liberty [Vol. 5:581

582

BSTRACT: The “Patient Protection and Affordable Care Act”

includes what is called an “individual responsibility requirement”

or mandate that all persons buy health insurance from a private

company and a separate “penalty” enforcing this requirement. In

this paper, I do not critique the individual mandate on originalist

grounds. Instead, I explain why the individual mandate is unconsti-

tutional under the existing doctrine by which the Supreme Court

construes the Commerce and Necessary and Proper Clauses and the

tax power. There are three principal claims.

First (Part II), since the New Deal, the Supreme Court has devel-

oped a doctrine allowing the regulation of wholly intrastate activity:

the substantial effects doctrine. Although commonly conceived as a

Commerce Clause doctrine, from its inception this doctrine has

been grounded in the Necessary and Proper Clause. In the 1990s,

the Supreme Court developed a judicially administrable test for

whether it is “necessary” for Congress to reach intrastate activity

that substantially affects interstate commerce: the distinction be-

tween economic and noneconomic intrastate activity. Because the

individual mandate fails to satisfy the requirements of this test as

understood under existing doctrine, it exceeds the power granted to

Congress by the Commerce and Necessary and Proper Clauses as

currently construed by the Supreme Court. The mandate also fails

to satisfy an alternative to the substantial effects doctrine that was

proposed by Justice Scalia in a concurring opinion in Gonzales v.

Raich because it extends beyond the regulation of intrastate activity

to reach inactivity.

Second (Part III), because the “individual responsibility re-

quirement” purports to be a regulation of commerce and cannot

possibly be construed as a tax, it is not justified under the tax power

of Congress; and, if the “requirement” or mandate is an unconstitu-

tional regulation, there is nothing for the “penalty” to enforce. Nei-

ther is the penalty, considered apart from the regulatory require-

ment, a tax under current doctrine.

Third (Part IV), the Supreme Court should not further expand

Congress’s power beyond existing doctrine to allow it to mandate

that individuals engage in economic activity by entering into con-

tracts with private companies. Such economic mandates are directly

analogous to the commandeering of the states that the Supreme

Court has held to be an improper exercise of the commerce power.

The very few mandates that are imposed on the people pertain to

2010] Commandeering the People

583

their fundamental duties as citizens of the United States, such as the

duty to defend the country or to pay for its operation. A newfound

congressional power to impose economic mandates to facilitate the

regulation of interstate commerce would fundamentally alter the

relationship of citizen and state by unconstitutionally commandeer-

ing the people.

In Part V, I conclude with a “realist” assessment of the likeli-

hood that the Supreme Court will actually find the mandate to be

unconstitutional.

INTRODUCTION: WHAT THE CONSTITUTION SAYS

The “Patient Protection and Affordable Care Act” includes what

is called an “individual responsibility requirement” that all persons

buy health insurance from a private company.

Is this requirement

constitutional? There are three ways to analyze whether a law is

constitutional or not. Does it conflict with what the Constitution

says? Does it conflict with what the Supreme Court has said? Are

there five votes for a particular result? Unless we are clear about

which sense of “unconstitutional” we are using, we are likely to talk

past each other.

In my book Restoring the Lost Constitution,

I defend interpreting

the text of the Constitution according to its original public meaning.

I also contend that the evidence is overwhelming that the core

original public meaning of “commerce” was trade or exchange of

goods, including their transportation. Commerce means “with mer-

chandise” and shares the same root as “merchants.” Even broad-

ened to include all “intercourse” between states, commerce is still

confined to the communication of something—whether goods,

people, or messages—from one state to another. Commerce consti-

tutes a subset of economic activity that is distinct from the economic

activities of manufacturing or agriculture, both of which involve the

production of the things to be transported or communicated from

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501, 124 Stat.

119 (2010).

RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF

LIBERTY (2005).

New York University Journal of Law & Liberty [Vol. 5:581

584

one state to another.

Not only was this the original meaning of “commerce,” but the

Supreme Court has never expressly updated or broadened its

meaning of the Commerce Clause, which says that Congress has the

power “to regulate Commerce . . . among the Several states.”

In-

stead, during the New Deal, the Supreme Court used the Necessary

and Proper Clause to allow Congress to regulate economic activities

that were neither interstate nor commerce because such activities

had a substantial effect on interstate commerce.

Under the original meaning of “commerce,” insurance contracts

did not qualify. Such contracts are mere promises to pay money

upon the occurrence of specified conditions, and do not involve the

conveyance of goods or other items from one state to another. And

so the Supreme Court held in the 1869 case of Paul v. Virginia that

“issuing a policy of insurance is not a transaction of commerce.”

As the Court in Paul elaborated:

The polic

ies are simple contracts of indemnity against loss

by fire, entered into between the corporations and the as-

sured, for a consideration paid by the latter. These contracts

are not articles of commerce in any proper meaning of the

word. They are not subjects of trade and barter offered in

the market as something having an existence and value in-

dependent of the parties to them. They are not commodities

to be shipped or forwarded from one State to another, and

then put up for sale. They are like other personal contracts

between parties which are completed by their signature and

the transfer of the consideration.

What is more, the Court further held that the fact that an insurance

company and the insured were in different states did not render an

insurance contract interstate commerce.

U.S. CONST. art. I, § 8 cl. 3.

Paul v. Virginia, 75 U.S. (8 Wall.) 168, 183 (1868).

Id.

2010] Commandeering the People

585

Such contracts are not interstate transactions, though the

parties may be domiciled in different States. The policies do

not take effect—are not executed contracts—until delivered

by the agent in Virginia. They are, then, local transactions,

and are governed by the local law. They do not constitute a

part of the commerce between the States any more than a

contract for the purchase and sale of goods in Virginia by a

citizen of New York whilst in Virginia would constitute a

portion of such commerce.

It is worth noting that Paul was decided in 1869, well before

what came to be derisively called the Lochner Era. Thus, under the

original meaning of the Commerce Clause, as affirmed by the

Court, Congress lacks any power over the health insurance busi-

ness. The insurance business, like the businesses of manufacturing

or agriculture, is to be regulated exclusively by the states.

And so matters stood for 75 years—or more accurately for 150

years since the Founding—until the New Deal Supreme Court re-

visited the issue in 1944. In United States v. South-Eastern Underwrit-

ers,

the Court for the first time allowed Congress to regulate the

interstate insurance business. In his opinion, Justice Black pur-

ported to adhere to original meaning: “Ordinarily courts do not

construe words used in the Constitution so as to give them a mean-

ing more narrow than one which they had in the common parlance

of the times in which the Constitution was written.”

He then con-

cluded that, “[t]o hold that the word ‘commerce’ as used in the

Commerce Clause does not include a business such as insurance

would do just that.”

Based only on a solitary passing observation

by Alexander Hamilton concerning insurance, and the fact that “the

Id.

United States v. Se. Underwriters, 322 U.S. 533 (1944).

Id. at 539.

Id.

New York University Journal of Law & Liberty [Vol. 5:581

586

dictionaries, encyclopedias, and other books of the period show that

it included trade,”

Justice Black contended that

a heavy burden is on him who asserts that the plenary

power which the Commerce Clause grants to Congress to

regulate ‘Commerce among the several States’ does not in-

clude the power to regulate trading in insurance to the

same extent that it includes power to regulate other trades

or businesses conducted across state lines.

But what of Paul and the seventy-five years’ worth of cases that

relied on it as precedent? Justice Black made short work of the now-

hallowed doctrine of stare decisis. All of these cases, he contended,

involved upholding state insurance regulations that had been es-

sential in the absence of congressional regulation. The existence of

these state regulatory schemes did not deprive Congress of its

power to enter the field. And so was born the authority for Con-

gress to regulate health insurance companies that had, until then,

been exclusively regulated by the states.

It is not my purpose here to demonstrate that the New Deal

Court was wrong and even disingenuous when it claimed that the

power to regulate the insurance business was justified by original

meaning, though I do not mind recalling the Court’s willingness to

ignore a seventy-five-year-old well-entrenched precedent to uphold

the post-New Deal powers of Congress. Nor will I be contesting the

constitutionality of the individual mandate on the ground that it

violates the original meaning of what the Constitution says.

Instead, my claim is that the mandate is unconstitutional in the

second sense: based on what the Supreme Court has said in its Com-

merce and Necessary and Proper Clause decisions, presented in

Part II—and also in its tax power decisions, presented in Part III.

Id.

Id. (footnote omitted).

Immediately after South-Eastern Underwriters, Congress passed the McCarran-

Ferguson Act, 15 U.S.C. §§ 1011–1015 (1945) in order to preserve the existing state

regulatory schemes.

2010] Commandeering the People

587

Existing doctrine reveals the individual mandate is unconstitutional

even if we assume that Congress has the power to regulate the in-

surance business that the New Deal Supreme Court gave it in South-

Eastern Underwriters.

My position rests entirely on post-New Deal constitutional

cases and doctrine, except where that doctrine does not reach a de-

finitive conclusion so new reasoning is required. In Part IV, I con-

tend that the Supreme Court should not extend the powers of Con-

gress beyond what is authorized by existing law to uphold a man-

date on individuals to engage in economic activity. Finally, in Part

V, I conclude by briefly addressing the likelihood that the Supreme

Court would actually hold the mandate unconstitutional.

II.

THE INDIVIDUAL MANDATE AND EXISTING COMMERCE AND

NECESSARY AND PROPER CLAUSE DOCTRINE

A. Existing Commerce and Necessary and Proper Clause Doctrine

THE LAW PROFESSORS’ UNDERSTANDING.

Let me begin by telling the story of the Supreme Court’s Com-

merce Clause doctrine the way that most law professors today both

teach and understand it. Until 1995, law professors believed that,

beginning in 1937 with cases such as NLRB v. Jones & Laughlin

Steel,

United States v. Darby,

and Wickard v. Filburn,

the Su-

preme Court had so expanded the scope of the commerce power of

Congress that Congress could do anything it wanted provided it

was not violating some other constitutional constraint, like the First

Amendment.

Law professors were shocked, then, when the Supreme Court in

1995 held in United States v. Lopez

that the Gun Free School Zone

Act unconstitutionally exceeded the commerce power of Congress.

They interpreted this case as an aberration. By 1995, Congress had

NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 37 (1937).

United States v. Darby, 312 U.S. 100, 114 (1941).

Wickard v. Filburn, 317 U.S. 111 (1942).

United States v. Lopez, 514 U.S. 549 (1995).

New York University Journal of Law & Liberty [Vol. 5:581

588

become so complacent about the scope of its powers that it did not

even bother to make findings about why the act was within its

commerce power. Most law professors were confident that, in the

future, the Court would uphold any law if Congress made adequate

findings that the activity it sought to regulate had a substantial ef-

fect on interstate commerce.

So law professors were, once again, surprised when the Su-

preme Court in 2000 held in United States v. Morrison

that the Vio-

lence Against Women Act was unconstitutional—notwithstanding

extensive hearings and findings about the substantial effects of vio-

lence against women on interstate commerce. In the wake of Morri-

son, law professors started to believe that the Court just might be

serious about drawing a line between what is national and what is

local, and lower courts started to be more receptive to Commerce

Clause challenges.

In one such case I helped bring on behalf of Angel Raich and

Diane Monson, the Ninth Circuit held that the Controlled Sub-

stances Act was unconstitutional as applied to marijuana grown at

home for medical use as authorized by state law.

When the Su-

preme Court in Gonzales v. Raich

turned away this challenge, how-

ever, law professors breathed a sigh of relief that they had been

right all along. They reverted to their pre-Lopez understanding that

Congress can do pretty much whatever it wants under its com-

merce power.

Indeed, the new conventional wisdom is that, so long as Con-

gress establishes a sweeping and ambitious regulatory scheme, it

can reach any activity—whether economic or not—that it deems to

be essential to that scheme. In other words, the more grandiose the

claim of power by Congress, the stronger is its claim of constitu-

tionality.

Hence some law professors have confidently asserted that Con-

gress may, for the first time in American history, use its commerce

United States v. Morrison, 529 U.S. 598 (2000).

Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003).

Gonzalez v. Raich, 545 U.S. 1 (2005).

2010] Commandeering the People

589

power to mandate that all individuals in the United States engage in

economic activity.

After all, this mandate is essential to Congress’s

grandiose new scheme regulating private insurance companies, so

under Raich, it must be constitutional.

Of course, when evaluating the individual mandate, five Jus-

tices are always free to disregard what the Court has previously

said, just as Justice Black and a majority of Justices did in South-

Eastern Underwriters. But this raises the third sense of constitutional-

ity: what we can predict five Justices will do. Before we get to that

issue, we need first to examine what the Supreme Court has said

and what it has not said about the Commerce Clause. It is to this

question I now turn.

THE NEW DEAL AND WARREN COURT’S CASES.

Before 1937, the Supreme Court had held that Congress could

not use its power over interstate commerce as a pretext to reach

such economic but noncommercial intrastate activities as manufac-

turing or agriculture, activities which were instead within the police

power of states to regulate.

In 1937, in NLRB v. Jones & Laughlin

Steel,

the Supreme Court held for the first time that Congress

could regulate the labor relations of manufacturers and their work-

ers because labor strife affected interstate commerce by obstructing

the flow of manufactured goods bound for the interstate market. As

the Court stated, “acts which directly burden or obstruct interstate

or foreign commerce, or its free flow, are within the reach of the

congressional power.”

Such acts “are not rendered immune be-

cause they grow out of labor disputes. It is the effect upon com-

merce, not the source of the injury, which is the criterion.”

See, e.g., Mark A. Hall, The Constitutionality of Mandates to Purchase Health Insur-

ance (The O'Neill Institute for National and Global Health Law, Wake Forest Univ.

Legal Studies Paper No. 1334955), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334955.

United States v. E. C. Knight Co., 156 U.S. 1 (1895).

NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937).

Id. at 31.

Id. at 31–32.

New York University Journal of Law & Liberty [Vol. 5:581

590

In other words, although the activity being regulated was not

commerce, it could be reached because of its effects on commerce.

“Although activities may be intrastate in character when separately

considered, if they have such a close and substantial relation to in-

terstate commerce that their control is essential or appropriate to

protect that commerce from burdens and obstructions, Congress

cannot be denied the power to exercise that control.”

Neverthe-

less, the Court concluded its opinion by offering the following reaf-

firmation of the scheme of limited and enumerated powers: “Un-

doubtedly the scope of this power must be considered in the light of

our dual system of government,” wrote Chief Justice Hughes, “and

may not be extended so as to embrace effects upon interstate com-

merce so indirect and remote that to embrace them, in view of our

complex society, would effectually obliterate the distinction be-

tween what is national and what is local and create a completely

centralized government.”

Then in 1941, in United States v. Darby

the Court further ex-

panded the power of Congress. Exactly how it did so will prove

important in assessing the constitutionality of the individual man-

date. In Darby, the Court separately considered two distinct powers

asserted by Congress in the Fair Labor Standards Act. First was the

“power to prohibit the shipment in interstate commerce of lumber

manufactured by employees whose wages are less than a prescribed

minimum or whose weekly hours of labor at that wage are greater

than a prescribed maximum.”

In assessing this claim of power,

as in Jones & Laughlin Steel, the Court in Darby did not reject the

original meaning of “commerce.” Instead, it said that, “[w]hile

manufacture is not of itself interstate commerce the shipment of manu-

factured goods interstate is such commerce and the prohibition of

such shipment by Congress is indubitably a regulation of the com-

Id. at 37.

Id. (emphasis added).

United States v. Darby, 312 U.S. 100 (1941).

Id. at 108.

2010] Commandeering the People

591

merce.”

As authority for this proposition the Court relied heavily

on Chief Justice Marshall’s evaluation of the Commerce Clause in

Gibbons v. Ogden.

In sum, the prohibition on shipping specified

goods in interstate commerce was a direct exercise of Congress’s

power over interstate commerce.

Yet, although Darby did not expand the meaning of “com-

merce” to uphold this part of the statute, it did importantly expand

the power of Congress by refusing to examine whether the Con-

gressional assertion of its commerce power was a pretext for reach-

ing activity that fell within the police power of states: “The motive

and purpose of a regulation of interstate commerce are matters for

the legislative judgment upon the exercise of which the Constitu-

tion places no restriction and over which the courts are given no

control,”

wrote Justice Stone. “Whatever their motive and pur-

pose, regulations of commerce which do not infringe some constitu-

tional prohibition are within the plenary power conferred on Con-

gress by the Commerce Clause.”

The Court then turned its attention to a different claim of

power, the power “to prohibit the employment of workmen in the

production of goods ‘for interstate commerce’ at other than pre-

scribed wages and hours.”

In assessing “whether such restriction

on the production of goods for commerce is a permissible exercise

of the commerce power,” the Court held that the “power of Con-

gress over interstate commerce is not confined to the regulation of

commerce among the states.”

The power also “extends to those ac-

tivities intrastate which so affect interstate commerce or the exercise of

the power of Congress over it as to make regulation of them appropri-

ate means to the attainment of a legitimate end, the exercise of the

granted power of Congress to regulate interstate commerce.”

Id. at 113 (emphases added).

See id. at 113–14.

Id. at 115.

Id.

Id. at 105.

Id. at 118 (emphasis added).

Id.

New York University Journal of Law & Liberty [Vol. 5:581

592

As authority for this principle, the Court relied not on the

Commerce Clause case of Gibbons but instead upon the Necessary

and Proper Clause Case of McCulloch v. Maryland.

This tells us

that the “substantial effects” doctrine established by the New Deal

Court concerns the application of the Necessary and Proper Clause

in the context of the commerce power. In other words it is a doc-

trine applying, explaining, and implicitly limiting the use of “neces-

sary and proper” means to execute Congress’s power over inter-

state commerce.

This was big. To uphold the first of these claims of power, the

Court abandoned one of the principal limits on the Necessary and

Proper Clause that Chief Justice John Marshall had asserted in

McCulloch:

Should Congress, in the execution of its powers, adopt

measures which are prohibited by the constitution; or

should Congress, under the pretext of executing its powers, pass

laws for the accomplishment of objects not entrusted to the gov-

ernment; it would become the painful duty of this tribunal,

should a case requiring such a decision come before it, to

say that such an act was not the law of the land.

So important was this qualification to Marshall that he invoked

this passage in defense of his decision in McCulloch when writing

anonymously as “A Friend of the Constitution.”

So, by discarding

this aspect of McCulloch, the Supreme Court in Darby again broke

sharply from over one-hundred years of its own doctrine.

Darby is also big because, to uphold the second claim of power,

the Court allowed Congress to regulate wholly intrastate activities

under the Necessary and Proper Clause that it could not justify as a

regulation of interstate commerce itself. The doctrine allowing Con-

See id.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819) (emphasis added).

2010] Commandeering the People

593

gress to regulate intrastate activity that substantially affects inter-

state commerce, therefore, defines the scope of the Necessary and

Proper Clause. Therefore, all future cases applying this doctrine are

not, strictly speaking, “Commerce Clause cases.” Instead, they are

“Necessary and Proper Clause cases” in the context of the regula-

tion of interstate commerce.

Then came Wickard v. Filburn,

in which the Court upheld the

provisions of the Agricultural Adjustment Act, which limited the

quantity of wheat that an individual farmer could grow, not to sell

on the interstate market, but to consume on the farm by feeding his

livestock and his family. As historian Barry Cushman has chroni-

cled,

the implications of upholding this claim of power were so

disturbing to the New Deal Justices that they held the matter over

for reargument. Yet, Justice Jackson’s opinion made the case seem

like a natural application of the Necessary and Proper Clause. “The

question would merit little consideration since our decision in

United States v. Darby, sustaining the federal power to regulate pro-

duction of goods for commerce,” he wrote, “except for the fact that

this Act extends federal regulation to production not intended in

any part for commerce but wholly for consumption on the farm.”

Once again, the Court did not expand the meaning of “com-

merce” beyond its original meaning when upholding the power of

Congress to reach intrastate activity that is not itself commerce:

“[E]ven if appellee’s activity be local and though it may not be re-

garded as commerce, it may still, whatever its nature, be reached by

Congress if it exerts a substantial economic effect on interstate

John Marshall, A Friend of the Constitution, ALEXANDRIA GAZETTE, July 5, 1819,

reprinted in

JOHN MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND 187 (Gerald

Gunther ed., Stanford University Press 1969).

See J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002

ILL. L. REV. 581, 619 (2002) (“[T]he ‘affecting commerce’ cases derive from the

Necessary and Proper Clause . . . .”); and id. at 618–19 (discussing Darby).

Wickard v. Filburn, 317 U.S. 111 (1942).

BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A

CONSTITUTIONAL REVOLUTION 212–19 (1998).

Wickard, 317 U.S. at 118.

New York University Journal of Law & Liberty [Vol. 5:581

594

commerce. . . .”

It then adopted the principle that the fact that Ros-

coe Filburn’s “own contribution to the demand for wheat may be

trivial by itself is not enough to remove him from the scope of fed-

eral regulation where, as here, his contribution, taken together with

that of many others similarly situated, is far from trivial.”

In Wickard, the government contended that “the statute . . . is

sustainable as a ‘necessary and proper’ implementation of the

power of Congress over interstate commerce.”

Once again, the

Court in Wickard relied not only on Gibbons, but on McCulloch as

well.

In short, like Darby, Wickard is both a Commerce Clause and

a Necessary and Proper Clause case. So too were the civil rights

cases of Heart of Atlanta Motel v. United States

and Katzenbach v.

McClung.

In Heart of Atlanta, the Court found that because Congress had

the power to regulate and protect the interstate flow of persons,

racial discrimination in the provision of public accommodations

burdened that flow and Congress therefore had the power to reach

this otherwise intrastate activity. “[T]he power of Congress to pro-

mote interstate commerce also includes the power to regulate the

local incidents thereof, including local activities in both the States of

origin and destination, which might have a substantial and harmful

effect upon that commerce.”

In response to the objection that “the

operation of the motel here is of a purely local character,” the Court

quoted the passage from Darby that relied on McCulloch, including

the citation to the case.

Likewise, in McClung, when the Court

turned its consideration to “The Power of Congress to Regulate

Local Activities,”

it rested the power of Congress to reach intra-

state activities on the power of Congress “‘[t]o regulate Commerce .

Id. at 125 (emphasis added).

Id. at 127–28.

Id. at 119 (citing U.S. CONST. art. I, § 8, cl. 18).

Id. at 129, n.29.

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

Katzenbach v. McClung, 379 U.S. 294 (1964).

Heart of Atlanta, 379 U.S. at 258.

See id. (quoting United States v. Darby, 312 U.S. 100, 118 (1941)).

2010] Commandeering the People

595

. . among the several States’ and . . . the power ‘[t]o make all Laws

which shall be necessary and proper for carrying into Execution the

foregoing Powers. . . .’”

THE REHNQUIST COURT CASES.

With these canonical cases in mind, let us now fast forward to

consider how the Supreme Court interpreted its own substantial

effects doctrine in Lopez, Morrison and Raich. In Lopez, Chief Justice

Rehnquist famously affirmed that “[w]e start with first principles.

The Constitution creates a Federal Government of enumerated

powers. . . . As James Madison wrote, ‘the powers delegated by the

proposed Constitution to the federal government are few and de-

fined. Those which are to remain in the State governments are nu-

merous and indefinite.’”

The Chief Justice then identified “three broad categories of ac-

tivity that Congress may regulate under its commerce power.”

First, “Congress may regulate the use of the channels of interstate

commerce.”

Second, “Congress is empowered to regulate and

protect the instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may come

only from intrastate activities.”

Finally, “Congress’ commerce au-

thority includes the power to regulate those activities having a sub-

stantial relation to interstate commerce . . . those activities that sub-

stantially affect interstate commerce.”

Turning to the third of these categories, Chief Justice Rehnquist

offered the following summary of the “substantial effects” cases

decided since the New Deal: “[W]e have upheld a wide variety of

congressional Acts regulating intrastate economic activity where we

have concluded that the activity substantially affected interstate

Katzenbach, 379 U.S. at 301–02.

Id. (quoting U.S. CONST. art. I, § 8, cl. 3, 18).

United States v. Lopez, 514 U.S. 549, 552 (1995) (Rehnquist, C.J.).

Id. at 558.

Id.

Id. at 558–59.

New York University Journal of Law & Liberty [Vol. 5:581

596

commerce.”

He then provided the following examples: “the regu-

lation of intrastate coal mining, intrastate extortionate credit trans-

actions, restaurants utilizing substantial interstate supplies, inns

and hotels catering to interstate guests, and production and con-

sumption of home-grown wheat.”

From these, he concluded that

“the pattern is clear. Where economic activity substantially affects

interstate commerce, legislation regulating that activity will be sus-

tained.”

Because the Gun Free School Zone Act regulated a “class

of activity” that lay outside the scope of this doctrine—the none-

conomic activity of possessing a gun within 1000 feet of a school—it

was held to be unconstitutional.

The above analysis of N.L.R.B., Darby, Wickard, Heart of Atlanta,

and McClung reveals that the judicial doctrine by which Congress

may reach intrastate economic activity that substantially affects in-

terstate commerce rested on the Necessary and Proper Clause.

Then, in Lopez, the Court restricted this combined power to the

regulation of economic activity. “Even Wickard,” wrote Chief Justice

Rehnquist, “which is perhaps the most far reaching example of

Commerce Clause authority over intrastate activity, involved eco-

nomic activity in a way that the possession of a gun in a school zone

does not.”

In this way the distinction between economic and

noneconomic intrastate activity provided a limiting doctrine on the

reach of the Necessary and Proper Clause.

In his dissenting opinion, Justice Breyer objected to the major-

ity’s distinction between “economic” and “noneconomic” intrastate

activity. “Although the majority today attempts to categorize Perez,

McClung, and Wickard as involving intrastate ‘economic activity,’

the Courts that decided each of those cases did not focus upon the

economic nature of the activity regulated. Rather, they focused

upon whether that activity affected interstate or foreign com-

Id. at 559.

Id. at 559–60 (citations omitted).

Id. at 560 (emphasis added).

Id.

2010] Commandeering the People

597

merce.”

To this Chief Justice Rehnquist responded that, by the

reasoning of the government and Justice Breyer, “we are hard

pressed to posit any activity by an individual that Congress is with-

out power to regulate.”

In order to preserve the constitutional scheme of limited and

enumerated powers, some line was needed to separate wholly in-

trastate activities that Congress could reach from intrastate activi-

ties that were solely within the police power of states. Chief Justice

Rehnquist identified this line by looking back over all the previous

substantial effects cases to see what they had in common: the regu-

lation of intrastate economic activity. And he drew this line not-

withstanding Justice Breyer’s objection that the distinction between

economic and noneconomic activity had not been highlighted or

even discussed in these previous cases.

But why draw the line at noneconomic intrastate activity? To

answer this question, we need to revisit the argument over the con-

stitutionality of the national bank that was upheld in McCulloch v.

Maryland.

In response to the argument that such a bank was not

truly necessary under the Necessary and Proper Clause, Chief Jus-

tice John Marshall famously equated (or seemed to equate) the

meaning of “necessary” with “convenient.” “If reference be had to

its use, in the common affairs of the world, or in approved authors,”

the word “necessary,” “frequently imports no more than that one

thing is convenient, or useful, or essential to another. To employ the

means necessary to an end, is generally understood as employing

any means calculated to produce the end. . . .”

This passage became famous because the matter of convenience

would seem to concern policy choices that lie beyond the purview

of the courts. As President Madison, who supported the result in

McCulloch, privately objected: “Does not the court also relinquish,

by their doctrine, all control on the legislative exercise of unconsti-

Id. at 628 (Breyer, J., dissenting).

Id. at 564 (majority opinion).

McCulloch v. Maryland, 17 U.S. 316 (4 Wheat.) (1819).

Id. at 413–14.

New York University Journal of Law & Liberty [Vol. 5:581

598

tutional powers?”

When the matter of a measure’s necessity “as-

sumes the character of mere expediency or policy,” it becomes

“evidently beyond the reach of Judicial cognizance. . . . [B]y what

handle could the Court take hold of the case?”

In response to stinging public criticisms of the decision, Mar-

shall defended his opinion in a series of newspaper essays writing

pseudonymously as “A Friend to the Union,” and later as “A Friend

of the Constitution.”

In these essays, Marshall invoked a less well-

known passage of McCulloch that omitted the word “convenient,”

and defined “necessary” as “‘needful,’ ‘requisite,’ ‘essential,’ ‘con-

ducive to,’ . . .”

While granting Congress’s discretion as to means,

Marshall denied that the Court ever said “that the word ‘necessary’

means whatever may be ‘convenient,’ or ‘useful.’ And when it uses

‘conducive to,’ that word is associated with others plainly showing

that no remote, no distant conduciveness to the object, is in the mind of

the court.”

In a later letter, Marshall said that the constitutionality

of a particular means “depends on their being the natural, direct,

and appropriate means, or the known and usual means, for the execu-

tion of the given power.”

In defending his opinion in McCulloch, Marshall claimed the author-

ity of the “masterly argument” made years before by then-Secretary of

the Treasury Alexander Hamilton in his opinion provided to President

Washington on behalf of the constitutionality of the first national bank.

Marshall quoted this passage from Hamilton’s opinion: “That every

power vested in a government, is, in its nature, sovereign, and in-

Letter from James Madison to Judge Spencer Roane (Sept. 2, 1819), in 3 LETTERS

AND

OTHER WRITINGS OF JAMES MADISON 143, 144 (Phila., J.P. Lippincott & Co. 1867).

Id.

See John Marshall, Letters to the Editor, “A Friend to the Union”, PHILA. UNION,

Apr. 24–28, 1819, reprinted in J

OHN MARSHALL’S DEFENSE OF MCCULLOCH V.

MARYLAND, supra note 38, at 78; and John Marshall, “A Friend of the Constitution”

essays, A

LEXANDRIA GAZETTE, June 30–July 15, 1819, reprinted in JOHN MARSHALL’S

DEFENSE OF MCCULLOCH V. MARYLAND, supra note 38, at 155.

McCulloch, 17 U.S. at 418.

John Marshall, Letter to the Editor, “A Friend to the Union”, PHILA. UNION, Apr.

28, 1819, reprinted in J

OHN MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND, supra

note 38, at 100 (emphasis added).

Id. (emphasis added).

2010] Commandeering the People

599

cludes, by force of the term a right to employ all the means requisite

and fairly applicable to the attainment of the ends of such power.”

In many respects Marshall’s opinion on McCulloch could be

characterized as plagiarizing his mentor Hamilton’s opinion on the

first bank.

Here is how Hamilton defines “necessary”: According

to “the grammatical” and “popular sense of the term . . . necessary

often means no more than needful, requisite, incidental, useful or con-

ducive to.”

But while Hamilton, like Marshall, strongly rejected an

overly strict reading of necessary “as if the word absolutely, or in-

dispensably, had been prefixed to it,”

he also rejected a com-

pletely open-ended reading of “necessary and proper.” “It may

truly be said of every Government, as well as that of the United

States, that it only has a right to pass such laws as are necessary and

proper to accomplish the objects intrusted to it: for no government

has a right to do merely what it pleases.”

Hamilton then considered what should be the legal “test” for

whet

her a measure was necessary under the clause. First, he re-

jected the idea that such a test should attempt to weigh the degree

of necessity. “The degree in which a measure is necessary, can

never be a test of the legal right to adopt it. That must be a matter of

opinion; and can only be a test of expediency.”

Instead, Hamilton

then offered this test: “The relation between the measure and the end,

between the nature of the mean employed toward the execution of a

power and the object of that power, must be the criterion of constitu-

tionality; not the more or less of necessity or utility.”

John Marshall, “A Friend of the Constitution”, ALEXANDRIA GAZETTE, July 2,

1819, reprinted in J

OHN MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND, supra

note 38, at 176.

See Beck, supra note 39, at 600-03 (comparing the two opinions).

Alexander Hamilton, Opinion on the Constitutionality of a National Bank (Feb. 23,

1791), in L

EGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED

STATES 95, 97 (M. St. Clair Clarke & D. A. Hall eds., Augustus M. Kelley Publishers

1967) (1832).

Id. at 98.

Id. (emphasis in original).

Id.

New York University Journal of Law & Liberty [Vol. 5:581

600

In modern parlance, according to Hamilton, there must be an

appropriate fit between means and ends, which is exactly what the

Supreme Court’s doctrine distinguishing between economic and

noneconomic activity seeks to discern. Rather than allowing Con-

gress to do ‘merely what it pleases,’ the economic-noneconomic dis-

tinction provides a judicially administrable line by which to identify

intrastate activities that are likely to be closely enough related to

interstate commerce as to make it appropriate for Congress to reach.

The distinction is useful because the regulation of intrastate eco-

nomic activity is far more likely to be closely related to interstate

commerce than is the vast array of intrastate noneconomic activity.

As Randy Beck has explained, “Given the close relationship be-

tween intrastate and interstate economic activity, a statute regulat-

ing local economic conduct will usually be calculated to accomplish

an end legitimately encompassed within the plenary congressional

authority over interstate commerce.”

To paraphrase Hamilton, by adopting the distinction between

economic and noneconomic activity, the Court provided a workable

doctrine by which the necessity of a particular regulation of intra-

state activity could be assessed without need for a court to evaluate

‘the more or less necessity or utility’ of the measure.

By limiting

the substantial effects doctrine to economic intrastate activity, the

Supreme Court provided the modern legal ‘test’ or ‘criterion of con-

stitutionality’ for whether a regulation of intrastate activity is what

‘may truly be said’ to be necessary under the Necessary and Proper

Clause. By this doctrine Congress is held within its enumerated

powers and denied the ‘right to do merely what it pleases.’

Beck, supra note 39, at 625. Beck considers this test to be effectuating the re-

quirement that a law be “proper,” rather than the requirement that it be “necessary.”

See id. at 648. Assessing whether this claim is correct on originalist grounds would

require the examination of a mass of evidence and is beyond the scope of this article.

What matters for present purposes is that Beck does not dispute, but instead insists,

that the economic-noneconomic distinction in existing “Commerce Clause” doctrine

is actually effectuating and limiting the scope of the Necessary and Proper Clause.

See id. at 626 (characterizing the Lopez decision as an effort to address the degree

question “on a more categorical basis, rather than through open-ended, case-by-case

consideration.”).

2010] Commandeering the People

601

Five years later, in United States v. Morrison, the Court reaf-

firmed the economic-noneconomic distinction within its substantial

affects doctrine: “While we need not adopt a categorical rule against

aggregating the effects of any noneconomic activity in order to de-

cide these cases, thus far in our Nation’s history our cases have up-

held Commerce Clause regulation of intrastate activity only where

that activity is economic in nature.”

And it rejected “petitioners’

reasoning [that] would allow Congress to regulate any crime as

long as the nationwide, aggregated impact of that crime has sub-

stantial effects on employment, production, transit, or consump-

tion.”

Once again, Justice Breyer questioned the economic-

noneconomic distinction. “[W]hy should we give critical constitu-

tional importance to the economic, or noneconomic, nature of an

interstate-commerce-affecting cause? If chemical emanations

through indirect environmental change cause identical, severe

commercial harm outside a State, why should it matter whether

local factories or home fireplaces release them?”

Then Justice

Breyer expressly invoked the language of both the Commerce and

Necessary and Proper Clauses, which “says nothing about either

the local nature, or the economic nature, of an interstate-commerce-

affecting cause.”

Justice Breyer was correct to invoke the Necessary and Proper

Clause. By rejecting his theory, however, the majority in Morrison in

effect refused to interpret the Necessary and Proper Clause more

expansively than the Court in Lopez read the New Deal cases to

have done. Indeed, Chief Justice Rehnquist reaffirmed the principle

articulated in N.L.R.B. that “the Constitution requires a distinction

between what is truly national and what is truly local. In recogniz-

United States v. Morrison, 529 U.S. 598, 613 (2000).

Id. at 615.

Id. at 657 (Breyer, J., dissenting).

Id.

New York University Journal of Law & Liberty [Vol. 5:581

602

ing this fact we preserve one of the few principles that has been

consistent since the Clause was adopted.”

So now we come to the 2005 case of Gonzales v. Raich. Did Raich

cast aside the lens adopted by the Court in Lopez and Morrison

through which it interpreted the post-New Deal cases that rested on

both the Commerce and Necessary and Proper Clauses? To the con-

trary. When reading the majority opinion in Raich, we must keep in

mind that it had to be written in such a fashion as to attract Justice

Kennedy’s fifth vote, which it did. (Justice Scalia did not join the

Court’s opinion.)

To begin, and most importantly, the majority in Raich does not

reject the economic-noneconomic distinction, or the reading of

Wickard that was adopted by the Court in Lopez. Instead, the Court

holds that the production of marijuana is an economic activity. Here

is what Justice Stevens says: “Our case law firmly establishes Con-

gress’ power to regulate purely local activities that are part of an

economic ‘class of activities’ that have a substantial effect on inter-

state commerce.”

He then quotes the following passage from

Wickard: “‘even if appellee’s activity be local and though it may not

be regarded as commerce, it may still, whatever its nature, be

reached by Congress if it exerts a substantial economic effect on

interstate commerce.’”

Justice Stevens explained that Wickard “establishes that Con-

gress can regulate purely intrastate activity that is not itself ‘com-

mercial,’ in that it is not produced for sale, if it concludes that fail-

ure to regulate that class of activity would undercut the regulation

of the interstate market in that commodity.”

He then rejected An-

gel Raich’s claim that the production of her marijuana was not

“economic,” by relying on the definition of “economic” found in a

1966 Webster’s Dictionary. “Unlike those at issue in Lopez and Mor-

Id. at 617–18 (Rehnquist, C.J.) (internal citations omitted).

Gonzales v. Raich, 545 U.S. 1, 17 (2005) (Stevens, J.) (internal citations omitted)

(emphasis added).

Id. (quoting Wickard v. Filburn, 317 U.S. 111, 125 (1942)).

Gonzales 545 U.S. at 18.

2010] Commandeering the People

603

rison, the activities regulated by the CSA are quintessentially eco-

nomic. ‘Economics’ refers to ‘the production, distribution, and con-

sumption of commodities.’”

So nothing in Justice Stevens’ opinion

in Raich remotely challenges the framework of Lopez or Morrison—

not even its dictionary definition of “economic.”

Moreover, invoking Webster’s Dictionary allowed the majority

to avoid adopting the government’s theory that any activity that

substituted for a market activity was economic.

The government’s

theory resembled Wickard insofar as Roscoe Filburn’s farming op-

eration could be regulated because his consumption of wheat on his

farm substituted for his buying wheat in interstate commerce. But

Wickard did not even hint at the proposition that Filburn’s intrastate

activity was “economic” activity because it substituted for interstate

commerce. No one would have doubted that Roscoe Filburn’s farm-

ing operation was economic activity regardless of whether its pro-

duce substituted for interstate commerce. The question in Wickard

was, given that Filburn’s farming operation was not commerce,

could it nevertheless be reached because it was necessary to the

regulation of interstate commerce? Because Filburn’s and countless

other farmers’ use of their own wheat, “though it may not be re-

garded as commerce,”

substituted for buying interstate wheat,

this wholly intrastate economic activity obstructed Congress’s

scheme to increase the price of interstate wheat.

In o

ur briefs and at oral argument in Raich,

we fought hard

against the government’s market substitution theory on the

grounds that, by this logic, virtually any activity could be deemed

economic. Therefore, if the substitution theory is accepted, the

economic-noneconomic distinction would be obliterated. Our ar-

Id. at 25.

Reply Brief for Petitioners, Gonzales v. Raich, 545 U.S. 1 (2005) (No. 03-1454).

Wickard, 317 U.S. at 125 (1942).

Id. at 128–29 (“Congress may properly have considered that wheat consumed on

the farm where grown if wholly outside the scheme of regulation would have a sub-

stantial effect in defeating and obstructing its purpose to stimulate trade therein at

increased prices.”).

See Br. for Resp’t at 25, Gonzales v. Raich, 545 U.S. 1 (2005) (No. 03-1454).

New York University Journal of Law & Liberty [Vol. 5:581

604

guments on this point were vindicated by the Court’s refusal to ac-

cept the government’s market substitution theory, adopting Web-

ster’s definition of “economic” instead.

B. Applying Existing Doctrine to the Individual Insurance Mandate

How does the individual mandate fare under existing Com-

merce Clause and Necessary and Proper Clause doctrine? First we

have to ascertain under which theory Congress purported to act.

Does the mandate purport to regulate or protect the instrumentali-

ties of interstate commerce? Does it purport to regulate or protect

persons or things in interstate commerce, even though the threat

may come only from intrastate activities? Or does it purport to

regulate those activities having a substantial relation to interstate

commerce, those activities that substantially affect interstate com-

merce?

In the Act, Congress asserted that “[t]he individual responsibil-

ity requirement provided for in this section . . . is commercial and

economic in nature, and substantially affects interstate commerce,

as a result of the effects described in paragraph (2).”

In this find-

ing, Congress confusingly refers to its own requirement as “com-

mercial and economic in nature” and substantially affecting inter-

state commerce, rather than to the underlying activity being regu-

lated. There is, of course, no such Commerce or Necessary and

Proper Clause doctrine. Nonetheless, Congress is clearly trying to

invoke the third category identified in Lopez and Morrison—and

preserved in Raich: the substantial effects doctrine.

As we have seen, the substantial effects doctrine is not a pure

application of the Commerce Clause, but is actually an assertion of

the Necessary and Proper Clause to reach activity that is neither

interstate nor commerce. Under the existing law assessing whether

a law reaching intrastate activity is “necessary” to the regulation of

interstate commerce, we must ask, (a) what is the “class of activity”

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501(a)(1), 124

Stat. 119 (2010).

2010] Commandeering the People

605

reached by the statute, and (b) is it economic or noneconomic? In

answering this question, the first thing to notice about all of the

substantial effects cases—including N.L.R.B., Darby, Wickard, Heart

of Atlanta, McClung, Lopez, Morrison, and Raich—is that each con-

cerns the regulation of a class of activities in which persons have

freely chosen to engage: manufacturing steel or lumber, operating a

hotel or restaurant, possessing a gun, perpetrating gender-

motivated violence, or growing marijuana.

In sum, all these cases involve activity, not inactivity. In none of

these cases did the government mandate that citizens engage in

economic activity by entering into a contract with a private com-

pany. Indeed, Congress implicitly acknowledges that existing doc-

trine requires economic activity in its first “finding,” when it states:

“The requirement regulates activity that is commercial and economic

in nature: economic and financial decisions about how and when

health care is paid for, and when health insurance is purchased.”

So Congress is purporting to stay within existing Necessary and

Proper Clause doctrine by claiming to regulate a class of economic

activity. But what is that class of activity? It is “decisions about how

and when health care is paid for, and when health insurance is pur-

chased.” In this way, the statute speciously tries to convert inactiv-

ity into the “activity” of making a “decision.” By this reasoning, a

“decision” not to take a job or not to sell your house or not to buy a

Chevrolet is an “activity that is commercial and economic in na-

ture” that can be mandated by Congress.

Perhaps for this reason, federal District Court Judge George

Caram Steeh, in his ruling granting the government’s motion to

dismiss the complaint brought against it by the Thomas More

Law Center, subtly changes the claim. “While plaintiffs describe

the Commerce Clause power as reaching economic activity, the

government’s characterization of the Commerce Clause reaching

economic decisions is more accurate.”

By this formulation, a

Id. § 1501(a)(2)(A) (emphases added).

Thomas More Ctr. v. Obama, No. 10-CV-11156, 2010 U.S. Dist. LEXIS 107416 at

*27 (E.D. Mich., Oct. 7 2010).

New York University Journal of Law & Liberty [Vol. 5:581

606

“decision” is not being reached because it is an “activity” under

existing doctrine. Rather, the district court extended the power of

Congress beyond the regulation of intrastate activity to enable it to

reach “economic decisions.” By reformulating the government’s the-

ory in this way, and referring to this as an “issue of first impres-

sion,”

Judge Steeh candidly exposes the novelty of the govern-

ment’s claim of power, and the need to reach beyond existing doc-

trine to justify it.

However formulated, this shift from regulating activity to regu-

lating “decisions” to refrain from acting obliterates the well-known

and intuitive distinction between acts and omissions. In the main,

persons are responsible for their actions, not for their failure to act.

Historically, one is not responsible for omissions to act unless one

has a preexisting duty to act.

Keep the word “duty” in mind, as it

will be of critical importance in the discussion of whether the Su-

preme Court should expand the power of Congress still further un-

der the Necessary and Proper Clause. But for now, I will confine

myself to the two problems that are most likely to stop the Court

from accepting the idea that Congress may use its power over inter-

state commerce coupled with the Necessary and Proper Clause to

compel persons to engage in economic activity.

The first is that such a claim of power has never before been as-

serted by Congress, much less validated by the Supreme Court. It is

literally unprecedented. Consider this: had the Commerce and

Necessary and Proper Clauses been used to mandate individual

conduct, every citizen would be able to recite all the mandates to

which he or she must adhere upon penalty of a fine. Yet, apart

from registering for the draft, serving on a jury, submitting a tax

Id. at *23.

RICHARD A. EPSTEIN, TORTS 8 –86 (1999) (“There is no distinction more deeply

rooted in the common law and more fundamental than that between misfeasance

and nonfeasance. . . .” (quoting Bohlen, Francis, The Moral Duty to Aid Others as a

Basis of Tort Liability, 56 U. P

A, L. REV. 217, 219 (1908)); Id. at 87 (“[C]ases of simple

bystander inaction or nonfeasance receive special treatment under the law. . . . The

inquiry then turns to the question of whether it is possible to find some independent

source for the duty to act.”).

2010] Commandeering the People

607

return, and responding to the census, none of us can think of any

such personal mandates. In Part V, I shall examine why these man-

dates differ in kind from a mandate to engage in economic activity.

Which brings me to the second problem: Accepting this theory

would open the door for an infinite variety of mandates in the fu-

ture. Under this theory of “activity,” Congress can mandate indi-

viduals do virtually anything at all on the grounds that the failure

to engage in economic activity substantially affects interstate com-

merce. Therefore, it would effectively obliterate, once and for all,

the enumerated powers scheme that even the New Deal Court did

not abandon.

Such a doctrine would run afoul of what the Constitution says

about the powers of Congress, what the Supreme Court has consis-

tently said about the scope of those powers, and even what Chief

Justice Marshall and Alexander Hamilton said about the scope of

the Necessary and Proper Clause. Of course, unlike district and cir-

cuit courts that are bound to follow existing Supreme Court doc-

trines, the Supreme Court itself may move beyond what it has pre-

viously said about the scope of congressional powers. But, for rea-

sons I shall discuss in the Part VI, I sincerely doubt there are five

votes today to take the power of Congress where it has never gone

before.

III.

THE INDIVIDUAL MANDATE AND EXISTING TAX POWER

DOCTRINE

Unable to produce a single example of Congress having used its

Commerce and Necessary and Proper Clause powers in this way,

defenders of the personal mandate began to shift grounds. On

March 21

, the same day the House approved the Senate version

of the legislation, the staff of the Joint Committee on Taxation

released a 157-page “technical explanation” of the bill.

The

word “commerce” appeared nowhere therein. Instead, the personal

JOINT COMM. ON TAXATION, TECHNICAL EXPLANATION OF THE REVENUE

PROVISIONS OF THE “RECONCILIATION ACT OF 2010,” AS AMENDED, IN COMBINATION

WITH THE

“PATIENT PROTECTION AND AFFORDABLE CARE ACT,” JCX-18-10 (2010).

New York University Journal of Law & Liberty [Vol. 5:581

608

mandate is dubbed an “Excise Tax on Individuals Without Essential

Health Benefits Coverage.”

100

But while the enacted bill does im-

pose excise taxes on “high cost,” employer-sponsored insurance

plans and “indoor tanning services,”

101

the statute never describes

the regulatory “penalty” it imposes for violating the mandate as an

“excise tax.” It is expressly called a “penalty.”

102

This shift will not

work.

A. Existing Tax Power Doctrine

In the 1920s, when Congress wanted to discourage activity that

was then deemed to be solely within the police power of states, it

tried to penalize the activity using its tax power. In Bailey v. Drexel

Furniture,

103

the Supreme Court struck down such a penalty saying,

“there comes a time in the extension of the penalizing features of

the so-called tax when it loses its character as such and becomes a

mere penalty with the characteristics of regulation and punish-

ment.”

104

Although the Court has never repudiated this principle,

105

after

the New Deal, it so broadly interpreted the commerce power that

Congress no longer needed to obviate the limits on its regulatory

100

Id. at 31.

101

I.R.C. §5000(B) (2010).

102

I.R.C. §5000(A) (2010).

103

Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). Bailey is also referred to as the

Child Labor Tax Case.

104

Id. at 38.

105

See, e.g., Dept. of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 779 (1994)

(raising the issue of whether an exaction labeled a “tax” could in reality be a penalty

for purposes of double jeopardy.) Writing for the majority, Justice Stevens reaffirmed

Bailey’s principle that even an enactment labeled a “tax,” could be found to be a pen-

alty:

We have cautioned against invalidating a tax simply because its enforcement

might be oppressive or because the legislature’s motive was somehow suspect.

A. Magnano Co. v. Hamilton, 292 U.S. 40, 44 (1934). Yet we have also recog-

nized that “there comes a time in the extension of the penalizing features of

the so-called tax when it loses its character as such and becomes a mere pen-

alty with the characteristics of regulation and punishment.” Id. at 46 (citing

Child Labor Tax Case, 259 U. S. 20, 38 (1922)).

2010] Commandeering the People

609

powers by taxing rather than regulating activity. Thus, under the

substantial effects doctrine, Congress may regulate or prohibit in-

trastate economic activity directly without invoking its taxation

power. For this reason, the principle for which Bailey still stands

became moribund. Yet precisely because a mandate to engage in

economic activity has never been upheld by the Court, the tax

power is once again being used to escape constitutional limits on

Congress’s regulatory power.

106

Supporters of the mandate cite United States v. Kahriger,

107

1953 case where the Court upheld a punitive tax on gambling by

saying that “[u]nless there are provisions extraneous to any tax

need, courts are without authority to limit the exercise of the taxing

power.”

108

Yet the Court in Kahriger also cited Bailey with ap-

proval.

109

How can both stances by the Court be reconciled?

The key to understanding Kahriger is the proposition the Court

there rejected: “it is said that Congress, under the pretense of exercis-

ing its power to tax has attempted to penalize illegal intrastate

gambling through the regulatory features of the Act.”

110

In other

words, just as in Darby where the Court declined to look beyond

Congress’s assertion that it was exercising its commerce power, the

Court in Kahriger declined to look behind Congress’s assertion that

it was exercising its tax power to see whether a measure was really

a regulatory penalty. As the New Deal Court said in Sonzinsky v.

United States (1937): “Inquiry into the hidden motives which may

move Congress to exercise a power constitutionally conferred upon

it is beyond the competency of courts.”

111

But this principle cuts

both ways. Neither has the Court ever looked behind Congress’s

106

See, e.g., Edward D. Kleinbard, Constitutional Kreplach, 128 TAX NOTES 755 (2010)

(asserting the tax power justification for the penalty enforcing the individual man-

date).

107

United States v. Kahriger, 345 U.S. 22 (1953), overruled by Marchetti v. United

States, 390 U.S. 39 (1968).

108

Id. at 31.

109

Id. at 31 n. 10.

110

Id. at 24 (emphasis added).

111

Sonzinsky v. United States, 300 U.S. 506, 513–14 (1937).

New York University Journal of Law & Liberty [Vol. 5:581

610

inadequate assertion of its commerce power to speculate as to

whether a measure could be justified as a tax.

B. Applying Existing Doctrine to the Individual Insurance Mandate

Congress simply did not enact the personal insurance mandate

pursuant to its tax powers. To the contrary, the statute expressly

says the mandate “regulates activity that is commercial and eco-

nomic in nature.”

112

It never mentions the tax power. The penalty is

simply there to enforce the health insurance requirement, which

cannot possibly be construed as a tax.

The Court in Sonzinisky also offered this observation: “The case

is not one where the statute contains regulatory provisions related to a

purported tax in such a way as has enabled this Court to say in other

cases that the latter is a penalty resorted to as a means of enforcing

the regulations.”

113

But this exactly describes the relationship be-

tween the individual requirement and the so-called tax. The penalty

is clearly being “resorted to as a means of enforcing”

114

a regulation

of commerce. The reasoning of Sonzinisky, therefore, strongly un-

dercuts the claim that the penalty in the Act is a tax.

The constitutionality of the mandate must rise or fall as a regu-

lation. Its constitutionality is not affected or enhanced by its con-

junction with a penalty in the Internal Revenue Code. And if the

health insurance requirement is unconstitutional because it exceeds

the powers of Congress, then there is nothing for the penalty to en-

force.

Moreover, unlike Sonzinisky, the penalty does not even purport

to be a tax. It is called a “penalty.” Although the penalty was in-

serted into the Internal Revenue Code, Congress then expressly

severed the penalty from the normal enforcement mechanisms of

the tax code. The failure to pay the penalty “shall not be subject to

112

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501(a)(2)(A),

124 Stat. 119 (2010).

113

Sonzinsky, 300 U.S. at 513 (emphasis added).

114

Id.

2010] Commandeering the People

611

any criminal prosecution or penalty with respect to such failure.”

115

Nor shall the IRS “file notice of lien with respect to any property of

a taxpayer by reason of any failure to pay the penalty imposed by

this section,”

116

or impose a “levy on any such property with re-

spect to such failure.”

117

All of these restrictions undermine the

claim that, because the penalty is inserted into the Internal Revenue

Code, that it is a garden variety tax.

We are not

without guidance from the Supreme Court about

the difference between a tax and a penalty. In United States v. La

Franca, the Court offered the following distinction: “A tax is an en-

forced contribution to provide for the support of government; a

penalty, as the word is here used, is an exaction imposed by statute

as punishment for an unlawful act.”

118

In the words of Justice

Souter, relying on La Franca, “if the concept of penalty means any-

thing, it means punishment for an unlawful act or omission, and a

punishment for an unlawful omission is what this exaction is.”

119

By contrast, “a tax is a pecuniary burden laid upon individuals or

property for the purpose of supporting the Government.”

120

Justice

Stone described taxes as “pecuniary burdens laid upon individuals

or their property, regardless of their consent, for the purpose of de-

fraying the expenses of government or of undertakings authorized

by it.”

121

Considered apart from the penalty, it is obvious that the indi-

vidual insurance mandate cannot have been imposed to raise reve-

nue and therefore be justified under the power of Congress to tax.

The mandate raises no revenue for the government whatsoever. To

the contrary, it commands that citizens provide revenue to private

insurance companies. But if the mandate is not an exercise of the tax

115

I.R.C. §5000A(g)(2)(A) (West 2010).

116

I.R.C. §5000A(g)(2)(B)(i) (West 2010).

117

I.R.C. §5000A(g)(2)(B)(ii) (West 2010).

118

United States v. La Franca, 282 U.S. 568, 572 (1931).

119

United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224

(1996).

120

Id. (quoting New Jersey v. Anderson, 203 U.S. 483, 492 (1906)).

121

City of New York v. Feiring, 313 U. S. 283, 287 (1941) (Stone, J.).

New York University Journal of Law & Liberty [Vol. 5:581

612

power, and is not independently constitutional under the Com-

merce and Necessary and Proper Clauses, then it is unconstitutional

and there is nothing for the “penalty” in the “Patient Protection and

Affordable Care Act” to enforce.

Given that the mandate cannot possibly be a tax, the argument

must be that the “penalty,” standing alone, is a tax. But was the

“penalty” enforcing the individual mandate enacted with “the pur-

pose of supporting the government,” or was it instead enacted as

“punishment for an unlawful . . . omission”? All of the findings in

support of the requirement attempted to justify it exclusively as a

regulation of commerce. Nowhere was the purpose of the penalty

separately identified as raising revenue.

To the contrary, in Section 9000 et seq of Title IX of the Act, enti-

tled, “Revenue Provisions,”

122

Congress expressly identified all the

revenue raising provisions therein including, for example, the “Ex-

cise tax on high cost employer-sponsored health coverage.”

123

know this list was exhaustive because its purpose was to score the

cost of the Act when Congress was laboring to bring its price tag

below one trillion dollars. The more revenue it could list in Section

9000 et seq, the lower the cost. Yet, the penalty enforcing the man-

date is nowhere listed as a source of revenue.

In short, the “penalty” is explicitly justified as a penalty to co-

erce compliance with a regulation of economic activity and not as a

tax. None of the purposes for the penalty involve raising revenue

and the section of the Act identifying revenue provisions overlooks

the penalty. So while Congress need not specify expressly what

power it may be exercising, there is simply no authority for the

Court to recharacterize a regulation as a tax when doing so is con-

trary to the express and actual regulatory purpose of Congress.

We can summarize this analysis as follows. Under existing tax

power doctrine: (1) the health insurance mandate does not fit the

definition of a tax; (2) when considering whether the penalty is a

tax, courts will not look behind the fact that the statute described it

122

Pub. L. No. 111-148, §§ 9001–9023, 124 Stat. 119 (2010).

123

I.R.C. §4980.

2010] Commandeering the People

613

as a “penalty” to enforce a regulation of commerce to see if the

“penalty” was really a tax; (3) if a court did look behind the labels of

“penalty” and “requirement”—as the government would need for it

to do—it would then have to decide whether the purpose of the

exaction was to raise revenues, or whether it genuinely operates

instead as a penalty for failing to adhere to the requirement.

So whether we stick with form or move behind the form to in-

quire about the substance of the measure, under existing doctrine

neither the mandate to buy health insurance, nor the penalty enforc-

ing it, is a tax.

124

Once again, defenders of the mandate are making

an unprecedented claim. Never before has the Court looked behind

Congress’s unconstitutional assertion of its commerce power to see

if a measure could have been justified as a tax. For that matter,

never before has a “tax” penalty been used to mandate, rather than

discourage or prohibit, economic activity.

But the government’s tax power theory is far more radical than

the Commerce and Necessary and Proper Clause theory precisely

because the Supreme Court has generally deferred to any invoca-

tion of the tax power to raise revenue to spend for the general wel-

fare. This normal deference is why the mandate’s defenders shifted

the argument from the Commerce Clause to the tax power. Yet if its

theory is accepted, Congress would be able to penalize or mandate

any activity by anyone in the country, provided it limited the sanc-

tion to a fine enforced by the Internal Revenue Service.

This is a congressional power unknown and unheard of before

2010. It would effectively grant Congress a general police power.

And we know what existing doctrine says about such a power:

“The Constitution . . . withhold[s] from Congress a plenary police

124

Of course, if it is a tax, then it may be neither an income nor an excise tax but in-

stead a direct tax on individuals. If so, then because it is not equally apportioned

among the several states, it would be an unconstitutional tax. See Steven J. Willis &

Nakku Chung, Constitutional Decapitation and Healthcare, 128 T

AX NOTES 169 (2010).

But I seriously doubt the Court will ever reach this question given (a) the text of the

statute, (b) what it has previously said about examining the true motives of Congress

and the difference between and tax and a penalty, and (c) the radical implications of

accepting the government’s argument.

New York University Journal of Law & Liberty [Vol. 5:581

614

power that would authorize enactment of every type of legisla-

tion.”

125

Such has been the Supreme Court’s position from the

Founding until today.

IV.

ESSENTIAL TO A BROADER REGULATION OF COMMERCE

Confronted with the difficulties of justifying the mandate under

existing substantial effects doctrine or the tax power, the govern-

ment has pressed a third argument: that the mandate is justified

under the Necessary and Proper Clause because it is an essential

part of a broader regulatory scheme.

126

For example, the new re-

quirement that insurance companies accept all applicants regardless

of their pre-existing illnesses is infeasible unless everyone is forced

into the insurance pool before they get sick.

Their reasoning has three steps: (a) if Congress has the power to

regulate insurance companies under its commerce power—as the

Court so ruled in South-Eastern Underwriters

127

—and (b) it can use

this power to impose regulations banning pre-existing conditions,

then (c) it becomes necessary to mandate that everyone buy insur-

ance. Hence, although not itself a regulation of commerce, the man-

date is a necessary and proper means to exercise Congress’s power

over interstate commerce.

The government’s argument is based on dicta in United States v.

Lopez. In his opinion, Chief Justice Rehnquist noted that the Gun

Free School Zone Act was not “an essential part of a larger regula-

tion of economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.”

128

This prin-

ciple was mentioned again by Justice Stevens writing for the major-

ity in Raich.

129

As we already saw, because the activity in Raich was

125

United States v. Lopez, 514 U.S. 549, 566 (1995).

126

See Reply Memo in Support of Defendant’s Motion to Dismiss at 14, Virginia v.

Sebelius, Civil Action No. 3:10CV188-HEH (E.D.VA. Aug. 2, 2010).

127

United States v. Se. Underwriters, 322 U.S. 533 (1944).

128

Lopez, 514 U.S. at 561.

129

See Gonzales v. Raich, 545 U.S. 1, 24–25 (2005) (Stevens, J.) (The “classification

[of marijuana as a Schedule I substance], unlike the discrete prohibition established

by the Gun-Free School Zones Act of 1990, was merely one of many ‘essential part[s]

2010] Commandeering the People

615

deemed by the Court to be “economic” in nature, Justice Stevens’

assertion of this principle did not entail it would apply to none-

conomic activity.

That Congress could reach intrastate noneconomic activity un-

der this theory was propounded by Justice Scalia in his concurring

opinion in Raich: “Congress may regulate even noneconomic local

activity if that regulation is a necessary part of a more general regu-

lation of interstate commerce.”

130

And he then grounded this prin-

ciple in the Necessary and Proper Clause. “As we implicitly ac-

knowledged in Lopez, . . . Congress’s authority to enact laws neces-

sary and proper for the regulation of interstate commerce is not lim-

ited to laws directed against economic activities that have a sub-

stantial effect on interstate commerce.”

131

In this way, Justice Scalia

affirmed the understanding that the line of cases upholding the

power of Congress to reach wholly intrastate activity are based on

the Necessary and Proper Clause.

Of course, a majority of the Supreme Court has yet to adopt Jus-

tice Scalia’s theory as a way of reaching intrastate economic and

noneconomic activity. But to justify the health insurance mandate,

the Supreme Court would have to go beyond anything previously

written by Justice Scalia, much less by Chief Justice Rehnquist or

Justice Stevens. The Supreme Court would have to rule that Con-

gress can regulate wholly intrastate inactivity when doing so is

deemed by Congress to be essential to a more general regulation of

commerce.

There is nothing in either Lopez or Raich to warrant the addi-

tional step beyond current doctrine to allow Congress to compel

that persons engage in economic activity when doing so is essential

to a broader regulation of commerce. (And in Part V, I will explain

why any such extension would be improper.) In Raich, both Justice

of a larger regulation of economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.’”).

130

Id. at 37.

131

Id. at 36; see also id. at 35 (Scalia, J., concurring) (“Our cases show that the regula-

tion of intrastate activities may be necessary to and proper for the regulation of inter-

state commerce. . . .”).

New York University Journal of Law & Liberty [Vol. 5:581

616

Stevens and Justice Scalia were attempting to deal with a rather

technical issue that arises in certain Commerce Clause cases. As Jus-

tice Thomas noticed in his dissent,

132

whereas both Lopez and Morri-

son were facial challenges, Raich involved the constitutionality of

the C.S.A. as applied to intrastate use of marijuana for medical use as

authorized by state law, on the ground that this subset class was

noneconomic.

133

Once one concedes the facial constitutionality of Congress’s

power over a statutorily defined class of activities, however, as was

conceded in Raich with respect to the Controlled Substances Act,

how is one to define the relevant subclass of intrastate activities that

Congress may reach? Just why is the relevant class the intrastate

possession and cultivation of marijuana for medical use as author-

ized by state law? Why is it not the intrastate cultivation and pos-

session of marijuana for medical use, regardless of whether the state

has authorized it? Or why is it not the intrastate cultivation of mari-

juana for recreational use as authorized by state law?

This is a serious conceptual problem with as-applied Commerce

Clause challenges. I believe this was the problem that Justice Scalia

was trying to address in his concurring opinion when he invoked

the Necessary and Proper Clause to explain why Congress could

sometimes reach even noneconomic activity as a means of regulat-

ing commerce that was indeed interstate. Justice Scalia would defer

132

See Raich, 545 U.S. at 61 (Thomas, J., dissenting) (“Because respondents do not

challenge on its face the CSA’s ban on marijuana, our adjudication of their as-applied

challenge casts no doubt on this Court's practice in United States v. Lopez and

United States v. Morrison. In those cases, we held that Congress, in enacting the

statutes at issue, had exceeded its Article I powers.” (citations omitted)).

133

See id. at 15 (Stevens, J.) (“Respondents in this case do not dispute that passage

of the CSA . . . was well within Congress’ commerce power. Nor do they contend

that any provision or section of the CSA amounts to an unconstitutional exercise of

congressional authority. Rather, respondents’ challenge is actually quite limited; they

argue that the CSA’s categorical prohibition of the manufacture and possession of

marijuana as applied to the intrastate manufacture and possession of marijuana for

medical purposes pursuant to California law exceeds Congress’ authority under the

Commerce Clause.”); Id. at 59 (O’Connor, J., dissenting) (“Respondents are correct

that the CSA exceeds Congress' commerce power as applied to their conduct, which

is purely intrastate and noncommercial.”).

2010] Commandeering the People

617

to Congress’s judgment that, as in Wickard, it needed to draw a cir-

cle around a class of activity that includes some intrastate none-

conomic activity.

In this regard, Raich truly does represent the same type of prob-

lem dealt with in Wickard. Once it is conceded that Congress has

power under the Commerce Clause over a class of interstate activi-

ties—whether regulating the interstate price of wheat or prohibiting

the interstate commerce in marijuana—then, according to Justice

Scalia, under the Necessary and Proper Clause, it can reach even

intrastate activity of the same kind if, in its judgment, the failure to

reach this activity will undercut its ability to regulate interstate

commerce. The need to address the problem of defining the rele-

vant class of activity also explains why Justice Stevens’ opinion

stressed the fungible nature of marijuana, and even included the

production of a “fungible commodity” in his definition of com-

merce.

134

Properly understood, then, both Wickard and Raich deal with an

exceedingly narrow problem that arises with as-applied Commerce

Clause challenges: defining the relevant class of activities for pur-

poses of the challenge. Had either court fully appreciated the prob-

lem it faced, it would not have had to strain so mightily to reach its

results.

135

In his concurrence, Justice Scalia came the closest to the

mark, but his analysis would have been tighter and more con-

strained had he confined himself to as-applied challenges to the

regulation of the intrastate subset of a class of activities that are

largely interstate in nature.

134

Id. at 22 (Stevens, J.) (“[A]s in Wickard, when it enacted comprehensive legisla-

tion to regulate the interstate market in a fungible commodity, Congress was acting

well within its authority to ‘make all Laws which shall be necessary and proper ‘to

regulate Commerce . . . among the Several States.’” (citations omitted)).

135

Nor would this difficulty arise if Nick Rosenkranz is right that there should be

no “as-applied” Commerce Clause challenges given that the subject of the Commerce

Clause is Congress and thus the proper constitutional question is whether Congress

exceeds its authority when it enacts a statute, not when the statute is applied. See

Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 S

TAN. L. REV. 1209,

1273–79 (2010).

New York University Journal of Law & Liberty [Vol. 5:581

618

In contrast with Raich (and Wickard), the lawsuits against the

individual mandate are all facial challenges to the “class of activity”

defined in the statute. No court is being asked to carve out a none-

conomic subset of the class of activities that Congress chose to regu-

late. No one is conceding that the bulk of this class is within the

power of Congress to reach. So neither the majority opinion in

Raich, nor Justice Scalia’s concurrence, are directly on point. I fully

expect that, if confronted with a challenge to the individual man-

date, Justice Scalia will appreciate the difference between the class

of inactivity being reached by the Act, and the subclass of none-

conomic activity prohibited by the C.S.A.

If Justice Scalia’s theory is considered to be existing law, it fails

even to hint at a power of Congress to reach inactivity, and man-

date economic activity, as a means of regulating interstate com-

merce. For that matter, neither does Chief Justice Rehnquist’s dicta

in Lopez that Congress can reach activity when doing so is “an es-

sential part of a larger regulation of economic activity, in which the

regulatory scheme could be undercut unless the intrastate activity

were regulated.”

136

Therefore, unless the Supreme Court is pre-

pared to use alchemy to convert a “decision” not to act into activity,

to uphold the individual mandate would require going beyond

both existing Commerce and Necessary and Proper Clause doctrine

and Justice Scalia's concurring opinion in Raich.

If and when a majority of the Court does accept Justice Scalia’s

“essential to a broader regulatory scheme” rationale for reaching

intrastate noneconomic activity, some doctrine limiting “necessity”

under this theory will be required. The distinction between eco-

nomic and noneconomic activity would obviously provide no limit

to this doctrine. The whole purpose for his concurring opinion was

to question the usefulness of that distinction in dealing with the

problems posed by Raich. Without some judicially administrable

limiting doctrine, however, the fear expressed in Lopez and Morrison

136

United States v. Lopez, 514 U.S. 549, 561 (1995) (emphasis added).

2010] Commandeering the People

619

that Congress would then possess a general police power would be

realized.

The distinction between activity and inactivity provides the

same type of judicially administrable limiting doctrine for what is

“necessary” to execute the commerce power under an “essential to

a broader regulatory scheme” theory as the economic-noneconomic

distinction provides for the substantial effects doctrine. Recall that

the economic-noneconomic distinction had not previously been dis-

cussed in the substantial effects doctrine cases when Chief Justice

Rehnquist looked back at these cases to identify this commonality.

Now that Congress has, for the first time, sought to reach inactivity,

all the Supreme Court need do is look back at its Necessary and

Proper Clause cases to see that every singe one involved the regula-

tion of activity, not inactivity.

Limiting Congress to regulating or prohibiting activity under

both the substantial effects and the essential to a broader regulatory

scheme doctrines would serve the same purpose as the economic-

noneconomic distinction. Such a formal limitation would help as-

sure that exercises of the Necessary and Proper Clause to execute

the commerce power would be truly incidental to that power and

not be remote. Doing nothing at all involves not entering into a lit-

erally infinite set of economic transactions. Giving a discretionary

power over this set to Congress when it deems it essential to a regu-

lation of interstate commerce would give Congress a plenary and

unlimited police power over inaction that is typically far removed

from interstate commerce.

Of course, like the distinction between economic and none-

conomic activity, the activity-inactivity distinction would not per-

fectly distinguish between incidental and remote exercises of im-

plied powers. But, however imperfect, some such line must be

drawn to preserve Article I’s scheme of limited and enumerated

powers. Because accepting the Government’s theory in this case

would effectively demolish that scheme, the Government’s theory is

unconstitutional.

In its current briefs, the Government implicitly acknowledges

this problem by its attempt to distinguish the health insurance

New York University Journal of Law & Liberty [Vol. 5:581

620

business as “unique” in a variety of respects and thereby appear to

be providing a limiting principle.

137

But examining the substance of

the law in question is precisely the sort of inquiry into the “more or

less necessity” of a measure that has been rejected by the Supreme

Court since McCulloch. Once the power to mandate economic activ-

ity is recognized here, the Court will refuse to examine future man-

dates on a case-by-case basis to see if they are factually like the

health insurance mandate. Therefore, if this mandate allowed, Con-

gress will henceforth have the power to impose mandates at its dis-

cretion regardless of the “uniqueness” of the market in question.

The government’s attempt to limit the doctrine by its factual asser-

tions is chimerical.

To sum up, the distinction between economic and noneconomic

activity now provides a judicially administrable limit to the “neces-

sary” prong of the Necessary and Proper Clause power to reach

wholly intrastate activity that substantially affects interstate com-

merce. This limiting doctrine was discovered by looking back to all

previous substantial effects cases to notice a commonality among

them. The “essential to a broader regulatory” theory of the Neces-

sary and Proper Clause likewise requires a limiting doctrine that

can be identified by looking back at all previous cases to see that, to

date, the Court has only sanctioned Congress reaching intrastate

activity.

138

In Chief Justice Rehnquist’s words, “the pattern is clear.”

139

Under the “necessary” element of the Necessary and Proper Clause,

137

See, e.g., Brief for Defendant at 17, Florida v. U.S. Dep’t of Health and Human

Servs., No. 3:10-cv-91-RV/EMT (N.D. Fla. Aug. 27, 2010); Brief for Defendant at 24,

Florida v. U.S. Dep’t of Health and Human Servs., No. 3:10-cv-91-RV/EMT (N.D.

Fla. Nov. 4, 2010).

138

In his opinion, Judge Vinson viewed the activity-inactivity distinction as limit-

ing the power of Congress under the Commerce Clause. See Florida v. U.S. Dep’t of

Health and Human Servs., No. 3:10-cv-91-RV/EMT, slip op. at 39–44 (N.D. Fla. Jan.

31, 2010). That the substantial effects doctrine was based on the Necessary and

Proper Clause, however, suggests that the activity-inactivity distinction can also be

viewed as restricting the “necessary” prong of the Necessary and Proper Clause in

the context of the commerce power. It is justifiable on the same grounds as was the

economic-noneconomic distinction, and identified in the same manner.

139

Lopez, 514 U.S. at 560 (Rehnquist, C.J.).

2010] Commandeering the People

621

Congress may only regulate intrastate activity, either (a) because

such activity is economic in nature and substantially affects inter-

state commerce or, (b) because, whether such intrastate activity is

economic or noneconomic in nature, reaching it is essential to a

broader regulation of interstate commerce.

WHY THE INDIVIDUAL MANDATE IS ALSO IMPROPER

A. What the Supreme Court Has Said About “Proper”

The government’s theory that Congress can mandate that peo-

ple engage in economic activity when doing so is essential to a

regulatory scheme only gets it past the requirement that the man-

date be necessary to the execution of the commerce power. But the

inquiry would not end there. The Necessary and Proper Clause re-

quires that laws be “proper” as well. Assuming the individual

mandate is deemed essential to a broader regulation of interstate

commerce and therefore is “necessary,” is it also a “proper” means

to the end of regulating interstate commerce?

In McCulloch, Chief Justice Marshall provided the following

rule of law to guide the application of the Necessary and Proper

Clause: “Let the end be legitimate, let it be within the scope of the

constitution, and all means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but consist with the letter

and spirit of the constitution, are constitutional.”

140

The requirement

that a law be “plainly adapted to that end,” concerns the matter of

means-ends fit, discussed above, when assessing a measure’s neces-

sity. The italicized portions concern the requirement that a means

that may be conducive to an enumerated end and, therefore, neces-

sary must also be appropriate or proper. First, such a means must

not be prohibited, and second it must be consistent with the letter

and spirit of the constitution.

Of course, because mandating economic activity on the grounds

that it is essential to the regulation of commerce is unprecedented,

there are no judicial opinions directly addressing whether such an

140

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (emphasis added).

New York University Journal of Law & Liberty [Vol. 5:581

622

economic mandate is “within the letter and spirit of the Constitu-

tion.” But neither has the Supreme Court been entirely silent on the

issue of the propriety of means when Congress is seeking to exer-

cise its commerce power. As it happens, the means it held to be im-

proper was a mandate on state governments.

In 1992, Congress used its commerce power to mandate that

any state that refused to enter into interstate compacts to dispose of

nuclear waste must take title to the nuclear waste itself. In New York

v. United States,

141

the Court held that this mandate constituted un-

constitutional commandeering of state legislatures. In her opinion

for the Court, Justice O’Connor explained that “the Constitution has

never been understood to confer upon Congress the ability to re-

quire the States to govern according to Congress’ instructions.”

142

She characterized this as unconstitutional “commandeering,” a term

she took from the 1981 case of Hodel v. Virginia Surface Mining &

Reclamation Ass’n.:

143

“Congress may not simply ‘commandeer the

legislative processes of the States by directly compelling them to

enact and enforce a federal regulatory program.’”

144

In New York,

the Court held that “‘the Act commandeers the legislative processes

of the States by directly compelling them to enact and enforce a fed-

eral regulatory program,’ an outcome that has never been under-

stood to lie within the authority conferred upon Congress by the

Constitution.”

145

Then, in 1997, Congress used its commerce power to mandate

that local sheriffs run background checks on gun buyers. In Printz v.

United States,

146

the Supreme Court held that this too constituted

improper “commandeering” of state executive branch officials. In

his opinion for the Court, Justice Scalia identified a principle of state

sovereignty underlying several provisions of the Constitution.

These included the prohibition on any involuntary reduction or

141

New York v. United States, 505 U.S. 144, 161 (1992).

142

Id. at 162 (O’Connor, J.).

143

Hodel v. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288 (1981).

144

New York, 505 U.S. at 161 (quoting Hodel).

145

Id. at 176 (quoting Hodel, 452 at 288) (emphasis added).

146

Printz v. United States, 521 U.S. 898 (1996).

2010] Commandeering the People

623

combination of a State’s territory in Art. IV, §3; the Judicial Power

Clause in Art. III, §2, and the Privileges and Immunities Clause in

Art. IV, §2, “which speak of the ‘Citizens’ of the States”

147

; the

amendment provision in Article V, “which requires the votes of

three-fourths of the States to amend the Constitution”

148

; and the

Guarantee Clause in Art. IV, §4.

149

This doctrine barring the commandeering of states has, how-

ever, come to be associated primarily with the Tenth Amendment.

“[R]esidual state sovereignty was also implicit, of course, in the

Constitution’s conferral upon Congress of not all governmental

powers, but only discrete, enumerated ones, Art. I, §8,” wrote Jus-

tice Scalia, “which implication was rendered express by the Tenth

Amendment’s assertion that ‘[t]he powers not delegated to the

United States by the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the people.’”

150

From the existence of residual state sovereignty expressed in

the Tenth Amendment, Justice Scalia concluded that the “Federal

Government may neither issue directives requiring the States to

address particular problems, nor command the States’ officers, or

those of their political subdivisions, to administer or enforce a fed-

eral regulatory program.”

151

Such commandeering is “fundamen-

tally incompatible with our constitutional system of dual sover-

eignty.”

152

In his response to the claim that this mandate on states was jus-

tified under the Necessary and Proper Clause as a means of effectu-

ating its commerce power, Justice Scalia memorably described the

clause as “the last, best hope of those who defend ultra vires con-

gressional action.”

153

He then explained: “When a ‘Law . . . for car-

rying into Execution’ the Commerce Clause violates the principle of

147

Id. at 919.

148

Id.

149

Id.

150

Id. (quoting U.S. CONST. amend. X).

151

Id. at 935.

152

Id.

153

Id. at 923.

New York University Journal of Law & Liberty [Vol. 5:581

624

state sovereignty reflected in” the Tenth Amendment and other

constitutional provisions, “it is not a ‘Law . . . proper for carrying

into Execution the Commerce Clause,’ and is thus, in the words of

The Federalist, ‘merely [an] act of usurpation’ which ‘deserves to be

treated as such.’”

154

In this way, Justice Scalia made clear that, how-

ever necessary Congress might deem it to be, imposing mandates

on state legislatures and executive officers was an improper means

to the end of regulating commerce among the several states.

Nor has Justice Scalia backed away from this position. In his

concurring opinion in Raich, referring to the portions of Chief Jus-

tice Marshall’s opinion in McCulloch emphasized above, he wrote:

“These phrases are not merely hortatory. For example, cases such as

[Printz and New York] affirm that a law is not ‘proper for carrying

into Execution the Commerce Clause’ ‘[w]hen [it] violates [a consti-

tutional] principle of state sovereignty.’”

155

But this principle did

not apply in Raich, he said, because “neither respondents nor the

dissenters suggest any violation of state sovereignty of the sort that

would render this regulation ‘inappropriate’ . . . ”

156

The Supreme Court’s most recent consideration of the meaning

of the Necessary and Proper Clause is United States v. Comstock,

157

which upheld the constitutionality of a federal statute allowing the

civil commitment of sexually dangerous criminals after the expira-

tion of their sentence for the commission of a federal crime. While

it gives the Necessary and Proper Clause an expansive reading,

154

Id. at 923–24. (citations omitted). In support of this conclusion, Justice Scalia

then cited Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A

Jurisdictional Interpretation of the Sweeping Clause, 43 D

UKE L.J. 267 (1993). Randy Beck

disputes both Justice Scalia’s and Lawson & Granger’s reading of “proper” on

originalist grounds, but this issue is beyond the scope of this article’s focus on exist-

ing doctrine. See Beck, supra note 39, at 626–48. Cf. Randy E. Barnett, The Original

Meaning of the Necessary and Proper Clause, 6 U.

PA. J. CONST. L. 185, 188–215 (2003)

(discussing original meaning of “necessary”). As suggested in Part I, both the regula-

tions imposed on insurance companies, and the insurance mandate imposed on in-

dividuals, most likely exceed the original scope of the enumerated powers of Con-

gress.

155

Gonzales v. Raich, 545 U.S. 1, 39 (Scalia, J., concurring) (emphasis in original).

156

Id. at 41.

157

United States v. Comstock, 130 S. Ct. 1949 (2010).

2010] Commandeering the People

625

Comstock offers little, if any, support for the individual mandate.

Justice Breyer’s opinion, purported to be narrow, identifies five fac-

tors that led the Court to its conclusion,

158

and may well have been

so written to attract the vote of Chief Justice Roberts. Even so, Jus-

tices Kennedy and Alito joined only in the result. In his concurring

opinion, Justice Kennedy advocated enhanced scrutiny of the con-

nection between means and ends when considering claims of power

under the Commerce Clause,

159

strongly signaling that his joining

the majority in Raich did not represent his abandonment of his prior

stance in Lopez.

160

But for present purposes, the most important thing about Com-

stock is that it said nothing whatsoever about the propriety of the

means—incarceration—employed by the statute. Instead, it solely

concerned whether there was a direct enough connection between

the statute and an enumerated power. The current substantial ef-

fects doctrine requires, at minimum, that the intrastate activity be-

ing reached is economic in nature and, therefore, likely to be suffi-

ciently connected to interstate commerce. Comstock simply does not

address the issue of "proper."

Comstock is also noteworthy for Justice Thomas’s dissenting

opinion, not only for what he says, but because it was joined by

Justice Scalia, which is a rarity in Commerce Clause cases.

161

his dissent, Justice Thomas reaffirmed the McCulloch standard

for assessing propriety: “The means Congress selects will be

deemed ‘necessary’ if they are ‘appropriate’ and ‘plainly adapted’

158

See id. at 1956-64.

159

See id. at 1967 (Kennedy, J., concurring):

Raich, Lopez, and Hodel were all Commerce Clause cases [that] require a tangi-

ble link to commerce, not a mere conceivable rational relation, as in Lee Optical.

. . . The rational basis referred to in the Commerce Clause context is a demon-

strated link in fact, based on empirical demonstration. While undoubtedly

deferential, this may well be different from the rational-basis test as Lee Optical

described it.

160

See United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J., concurring).

161

Justice Scalia did not join Justice Thomas’s originalist concurring opinions in

Lopez and Morrison and he was on the opposite side of Raich.

New York University Journal of Law & Liberty [Vol. 5:581

626

to the exercise of an enumerated power, and ‘proper’ if they are not

otherwise ‘prohibited’ by the Constitution and not ‘[in]consistent’

with its ‘letter and spirit.’”

162

He concluded his dissent by quoting

from Justice Scalia’s opinion in Printz: “Not long ago, this Court

described the Necessary and Proper Clause as ‘the last, best hope of

those who defend ultra vires congressional action.’”

163

And he la-

mented the fact that the majority opinion in Comstock “breathes new

life into that Clause, and—the Court’s protestations to the contrary

notwithstanding . . . comes perilously close to transforming the

Necessary and Proper Clause into a basis for the federal police

power that ‘we always have rejected.’”

164

So too would the use of the Necessary and Proper Clause to

uphold the individual mandate.

B. Why the Individual Mandate is an Improper Means to the Regulation of

Interstate Commerce

Because an individual mandate is an unprecedented means of

executing the commerce power, the Supreme Court has never

opined on whether it is “proper.” When the Supreme Court has

been silent on a question, it is time to turn to the Constitution itself

to see if it provides any guidance on the propriety of the govern-

ment’s novel claim of Congressional power.

165

As we have seen, the anti-commandeering cases that limit the

commerce power of Congress were ultimately grounded by the Su-

162

Comstock, 130 S. Ct. at 1971–72. Notice that Justice Thomas reads “appropriate”

as relating to the necessity of a mean rather than its propriety. Nothing of substance

turns on whether this is correct.

163

Id. at 1983 (Thomas, J., dissenting).

164

Id. (Thomas, J., dissenting) (quoting his concurring opinion in Lopez, 514 U.S. at

584).

165

In his opinion, Judge Vinson holds that the individual mandate is an “im-

proper” means of executing the commerce power because the rationales by which it

is allegedly justified would inevitably undermine the scheme of limited and enumer-

ated powers, and thereby violate the letter and spirit of the Constitution. See Florida

v. U.S. Dep’t of Health and Human Servs., No. 3:10-cv-91-RV/EMT, slip op. at 56–63

(N.D. Fla. Jan. 31, 2010). The analysis in this section can be viewed as providing an-

other independent reason to conclude that the mandate is improper.

2010] Commandeering the People

627

preme Court in the text of the Tenth Amendment. Yet the letter of

the Tenth Amendment is not limited to states. It says that the “pow-

ers not delegated by the Constitution to the United States . . . are

reserved to the states respectively, or to the people”.

166

As Justice

Thomas has written, the Tenth Amendment “avoids taking any po-

sition on the division of power between the state governments and

the people of the States”

167

—a position he reasserted just last term

in his dissenting opinion in Comstock in which Justice Scalia

joined.

168

In this way, the text of the Tenth Amendment recognizes

popular as well as state sovereignty.

The Supreme Court has not been silent on the sovereignty of

the people. In Chisholm v. Georgia,

169

its first great constitutional

case, the Supreme Court examined the question of whether states

were immune from being sued by individual citizens in federal

court. By a vote of four to one, the Supreme Court rejected Geor-

gia’s claim of sovereign immunity and affirmed the power of an

individual to sue a state for breach of contract in federal court.

To evaluate Georgia’s claim, the Justices were compelled to ex-

amine the concept of sovereignty and its relationship to the power

of an individual to sue a state to enforce his individual rights. As

Justice Cushing observed: “The rights of individuals and the justice

due to them, are as dear and precious as those of States. Indeed the

latter are founded upon the former; and the great end and object of

them must be to secure and support the rights of individuals, or

else vain is Government.”

170

166

U.S. CONST. amend. X. (emphasis added) (The Commonwealth of Virginia ini-

tially refused to ratify the Tenth Amendment because it thought the addition of these

words to the proposal that its ratification convention had recommended to Congress

vitiated the protection of state sovereignty. See Randy E. Barnett, Kurt Lash’s Majori-

tarian Difficulty: A Response to A Textual-Historical Theory of the Ninth Amendment,

60 S

TAN. L. REV. 937, 952–53 (2008) (describing Virginia’s objection to this language

and that of its U.S. Senators)).

167

U.S. Term Limits v. Thornton, 514 U.S. 779, 848 (1994) (Thomas, J., dissenting).

168

United States v. Comstock, 130 S. Ct 1949, 1971 (2010) (Thomas, J., dissenting).

169

Chisolm v. Georgia, 2 U.S. 419 (2 Dall.) (1793).

170

Id. at 468.

New York University Journal of Law & Liberty [Vol. 5:581

628

Chief Justice John Jay—former president of the Continental

Congress, former ambassador to Spain and France, and one of the

original co-authors of the Federalist papers—expounded on the na-

ture of sovereignty. “[T]he sovereignty of the nation is in the people

of the nation, and the residuary sovereignty of each State in the

people of each State. . . . [A]t the Revolution, the sovereignty de-

volved on the people; and they are truly the sovereigns of the coun-

try. . . .”

171

Later in his opinion he referred to “this great and glori-

ous principle, that the people are the sovereign of this country,”

172

and he referred to “the people,” not collectively, but as “fellow citi-

zens and joint sovereigns.”

173

Justice James Wilson—member of the committee of detail at the

Philadelphia convention that selected the actual wording of the

Constitution— joined Chief Justice Jay in locating sovereignty in the

individual citizen. “The only reason, I believe, why a free man is

bound by human laws, is, that he binds himself” and he thereby

“becomes amenable to the Courts of Justice, which are formed and

authorised by those laws.”

174

Wilson then asked, “[i]f one free man,

an original sovereign, may do all this; why may not an aggregate of

free men, a collection of original sovereigns, do this likewise?”

175

For

Wilson, like Jay, whatever sovereignty states enjoyed was deriva-

tive of the ultimate sovereignty of the individual person.

Of course, the Court’s decision in Chisholm was effectively re-

versed by the adoption of the Eleventh Amendment, which barred

suits against states in federal court by citizens of other states.

176

And, since the 1890 case of Hans v. Louisiana, a majority of the Su-

preme Court has “understood the Eleventh Amendment to stand

not so much for what it says, but for the presupposition . . . which it

171

Id. at 471.

172

Id. at 479.

173

Id. (emphasis added).

174

Id. at 456.

175

Id. (emphases added).

176

See U.S. CONST. amend. XI (“The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against

2010] Commandeering the People

629

confirms.”

177

In the words of Chief Justice Rehnquist in Seminole

Tribe of Florida v. Florida, this presupposition was that, “each State is

a sovereign entity in our federal system.”

178

But in affirming the underlying principle of state sovereignty

within the federal system, the Supreme Court has never repudiated

its early affirmation of popular sovereignty in Chisholm. In Yick Wo

v. Hopkins,

179

the Supreme court reaffirmed that “in our system,

while sovereign powers are delegated to the agencies of govern-

ment, sovereignty itself remains with the people, by whom and for

whom all government exists and acts.”

If commandeering the states is an improper means of executing

a federal power under the “letter” of the Tenth Amendment “and

spirit of the Constitution,” might not commandeering the people be

improper as well? Put another way, if imposing mandates on state

legislatures and executives intrudes improperly into state sover-

eignty, might mandating the people improperly infringe on popular

sovereignty?

As Lon Fuller and other contracts scholars have recognized, by

forming a contract persons employ a private law-making power.

The “power of the individual to effect changes in his legal relations

with others is comparable to the power of a legislature. It is, in fact,

only a kind of political prejudice which causes us to use the word

‘law’ in one case and not in the other. . . .”

180

Mandating that indi-

viduals exercise their private legislative power is as fundamental an

intrusion into popular sovereignty as mandating that states employ

their legislative powers violates state sovereignty.

Recall that, in Printz, Justice Scalia identified several sections of

the Constitution that presupposed the principle expressed in the

one of the United States by Citizens of another State, or by Citizens or Subjects of any

Foreign State.”).

177

Hans v. Louisiana, 134 U.S. 1 (1890).

178

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (Rehnquist, C.J.).

179

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (Matthews, J.).

180

Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799, 800–07 (1941).

New York University Journal of Law & Liberty [Vol. 5:581

630

Tenth Amendment.

181

As it happens, the text of the Constitution

also contains several express prohibitions on commandeering the

people. Persons may not be mandated to quarter soldiers in their

homes in time of peace,

182

to testify against themselves in a criminal

case,

183

or to labor for another.

184

Although private property may be

taken “for public use” if just compensation is made, it may not be

commandeered for private use.

185

These express prohibitions on commandeering the people sig-

nal that mandates are different than regulations that tell persons

who choose to engage in economic activity how they must do so —

or that prohibit certain activities altogether. To see why, consider

the duties the federal government does impose on the people: regis-

ter for the draft and serve if called, sit on a jury, fill out a census

form, and file a tax return. None of these duties are imposed via

Congress’s power to regulate economic behavior. Instead, all have

traditionally been considered fundamental duties that each person

owes to the government by virtue of American citizenship or resi-

dency. Each of these duties can be considered essential to the very

existence of the government, not merely convenient to the regula-

tion of commerce.

Consider the duty to serve in the military. The Pennsylvania

constitution of 1776 declared that “every member of society hath a

right to be protected in the enjoyment of life, liberty and property,

and therefore is bound to contribute his proportion towards the

expense of that protection, and yield his personal service when nec-

essary, or an equivalent thereto.”

186

In upholding the constitutional-

181

See New York v. United States, 505 U.S. 144, 161–62 (1992); Hodel v. Va. Surface

Mining & Reclamation Ass’n, 452 U.S. 264 (1981).

182

See U.S. CONST. amend. III.

183

See U.S. CONST. amend. V.

184

See U.S. CONST. amend. XIII.

185

See U.S. CONST. amend. V.

186

PA. CONST. art. 8 (1776), reprinted in, 5 THE FEDERAL AND STATE AMERICAN

CONSTITUTIONS, COLONIAL CHARTERS AND OTHER ORGANIC LAWS OF THE STATE 3081,

3083 (Thorpe ed., 1909); see also VT. CONST. C. 1, art. 9 (1777), reprinted in, 6 THE

FEDERAL AND STATE AMERICAN CONSTITUTIONS, COLONIAL CHARTERS AND OTHER

ORGANIC LAWS OF THE STATE 4747, 3740 (using identical language); N.Y CONST. art.

2010] Commandeering the People

631

ity of the national draft during World War I, the Supreme Court

said: “It may not be doubted that the very conception of a just gov-

ernment and its duty to the citizen includes the reciprocal obliga-

tion of the citizen to render military service in case of need, and the

right to compel it.”

187

The Court then summarily rejected a Thirteenth Amendment

objection to the draft on the ground that it was “unable to conceive

upon what theory the exaction by government from the citizen of

the performance of his supreme and noble duty of contributing to the

defense of the rights and honor of the nation, as the result of a war

declared by the great representative body of the people, can be said

to be the imposition of involuntary servitude. . . .”

188

This assertion

of the Thirteenth Amendment in the draft case demonstrates its

anti-commandeering nature. For, unless the Court could find an

affirmative duty of citizenship on which to base conscription, the

Thirteenth Amendment’s general prohibition on commandeering

the labor of the people would clearly apply to the draft.

Can a duty to purchase health insurance from a private com-

pany possibly be justified as being on a par with these other tradi-

tionally recognized fundamental duties of citizenship? Put another

way, does the reason why a mandate is a proper means for carrying

into execution the power of Congress to raise and support an army

also justify imposing economic mandates on the people that are

convenient to its regulation of commerce among the several states?

The propriety of the insurance mandate turns on this question.

What separates the United States from other countries is the

minimal and fundamental nature of the duties its citizens owe the

40 (1777) reprinted in, 5 THE FEDERAL AND STATE AMERICAN CONSTITUTIONS,

COLONIAL CHARTERS AND OTHER ORGANIC LAWS OF THE STATE, supra, at 2637 (“And

whereas it is of the utmost importance to the safety of every State that it should al-

ways be in a condition of defence; and it is the duty of every man who enjoys the

protection of society to be prepared and willing to defend it; this convention there-

fore . . . doth ordain, determine, and declare that the militia of this State, at all times

hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness

for service.”).

187

Selective Draft Law Cases, 245 U.S. 366, 378 (1918).

188

Id. at 390 (emphasis added).

New York University Journal of Law & Liberty [Vol. 5:581

632

state. During World War II, the people were not commandeered to

work in defense plants or buy war bonds. Even voting is not man-

dated in the United States. This is why so many Americans instinc-

tively sense that empowering Congress to commandeer the people

to engage in economic activities would fundamentally change the

relationship between themselves and their government. Conversely,

those who are not bothered by the individual mandate likely hold a

very capacious notion of the duties owed by the citizen to the

state—so capacious that they include ‘the supreme and noble duty’

to engage in any activity that Congress deems to be convenient to

its regulation of interstate commerce.

In both New York and Printz, Justices O’Connor and Scalia sup-

plemented their analysis with pragmatic reasons why state sover-

eignty is important in a federal system. For example, Justice

O’Connor stressed the reduction in accountability “when, due to

federal coercion, elected state officials cannot regulate in accordance

with the views of the local electorate in matters not preempted by

federal regulation.”

189

Mandates on states are improper because,

“where the Federal Government directs the States to regulate, it

may be state officials who will bear the brunt of public disapproval,

while the federal officials who devised the regulatory program may

remain insulated from the electoral ramifications of their deci-

sion.”

190

Likewise, the proposition that commandeering the people as a

means of regulating commerce violates popular sovereignty is also

supported by pragmatic considerations. Like mandates on states,

economic mandates undermine political accountability, though in a

different way. The public is acutely aware of tax increases. Rather

than incur the political cost of imposing a general tax on the public

using its tax powers, economic mandates allow Congress and the

President to escape accountability for tax increases by compelling

citizens to make payments directly to private companies.

189

New York v. United States, 505 U.S. 144, 169 (1992) (O’Connor, J.).

190

Id.

2010] Commandeering the People

633

That the individual insurance mandate was designed to obviate

political accountability is evidenced by President Obama’s high

profile denial—while the Act was still pending in the Senate—that

the mandate constituted a tax increase. The President needed to

avoid accountability for breaking his repeated pledge not to raise

taxes on persons making below a certain amount of money, so he

vehemently denied that the mandate imposed a tax. “For us to say

that you’ve got to take a responsibility to get health insurance is

absolutely not a tax increase.”

191

One suspects that this is why the

Senate bill was crafted as a regulation of commerce enforced by a

penalty, rather than as a revenue-raising tax. As Judge Vinson

wrote when dismissing the government’s tax power theory on its

merits:

Congress should not be permitted to secure and cast politi-

cally difficult votes on controversial legislation by deliber-

ately calling something one thing, after which the defenders

of that legislation take an “Alice-in-Wonderland” tack and

argue in court that Congress really meant something else

entirely, thereby circumventing the safeguard that exists to

keep their broad power in check.

192

Once Congress is allowed to avoid invoking its tax power by

mandating citizens to engage in economic activity, Congress can

engage in all sorts of “off budget” commands that citizens “buy”

some goods or services. The problem of accountability caused by

mandating that persons pay money to private companies implicates

concerns quite similar to those underlying the Takings Clause.

193

191

Interview by George Stephanopoulos with Barack Obama, U.S. President, (Sept.

9, 2009), available at http://blogs.abcnews.com/george/2009/09/obama-mandate-is-

not-a-tax.html.

192

Florida v. U.S. Dept. of Health & Human Servs.,716 F.Supp.2d 1120,1143 (N.D.Fla.

2010).

193

Whether this mandated payment from private persons to private companies

also constitutes a “taking” for purposes of the Fifth Amendment is a complex ques-

tion that is beyond the scope of this paper. For a suggestive discussion of why regu-

lations compelling payments to a private party could be considered a taking because

New York University Journal of Law & Liberty [Vol. 5:581

634

the first 150 years of our history, perhaps the most commonly given

example of a statute so unjust that it is not properly called a law is

the taking from A to give to B. Whether or not economic mandates

are technically “takings” under existing doctrine, however, they

raise comparable concerns.

194

For these reasons, therefore, the individual mandate is not

merely another regulation among countless ones imposed on the

American people by the federal government. It crosses an important

line between limited and unlimited government power. If a power

to impose an economic mandate because it is “convenient” to the

regulation of commerce is upheld here, then Congress could man-

date any behavior so long as it is cast as part of a broad regulatory

scheme. Today it is buying government approved health insurance.

Tomorrow it could be having an annual physical or mandating

what you eat. What sounds farfetched now can change with the

political winds.

Ordinarily, persons are responsible for their failure to act—or

omissions—when they have a preexisting duty to act. A mandate to

act, therefore, presupposes the existence of a duty, such as the duty

of a citizen to defend the country. But with the individual mandate

there is no traditionally recognized pre-existing duty. The duty to

purchase health insurance is entirely of Congress’s creation. Unless

they voluntarily choose to engage in activity that is within Con-

gress's power to regulate or prohibit, the American people retain

their sovereign power to refrain from entering into contracts with

private parties, even when commandeering them to do so may be

convenient to the regulation of commerce among the several states.

they undercut political accountability, see Chaim Gordon, Note, Protecting Peter when

the Legislature Robs Peter to Pay Paul after Empress Casino v. Giannoulias, 63 T

AX L. 1299

(2010) (discussing the reasoning of the plurality opinion in Eastern Enterprises v.

Apfel, 524 U.S. 498 (1998).

194

See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J.) (“An ACT of

the Legislature (for I cannot call it a law) contrary to the great first principles of the

social compact, cannot be considered a rightful exercise of legislative authority. [For

example,] a law that takes property from A. and gives it to B: It is against all reason

and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it

cannot be presumed that they have done it.”).

2010] Commandeering the People

635

VI.

CONCLUSION: FROM CITIZENS TO SUBJECTS

The third way of assessing constitutionality is to try to predict

whether the Supreme Court will uphold or strike down the indi-

vidual mandate. As everyone knows, the Supreme Court is loath to

strike down any acts of Congress, but especially legislation that en-

joys popular approval and acceptance.

195

If when it reaches the Su-

preme Court, the “Patient Protection and Affordable Care Act” fits

this description, I would predict that the Justices will strive mightily

to uphold it. I would also predict that, as in Raich, they would avoid

appearing to adopt a virtually open-ended interpretation of the

commerce power as the government had urged. Nor would they

adopt the even more radical theory that Congress can use its tax

power to penalize any activity or inactivity so long as the penalty is

a fine collected by the IRS. Instead, they would likely invoke their

already latitudinarian interpretation of the Necessary and Proper

Clause to find that the mandate is an essential part of a broader

regulatory scheme that would be undercut if this “economic deci-

sion” to “self-insure” cannot be regulated.

But suppose that, when the “Patient Protection and Affordable

Care Act” reaches the Court, it is perceived by the Justices to be un-

popular. Suppose it is also widely perceived to have been adopted

by a bare partisan majority employing unusual and suspect parlia-

mentary maneuvers to avoid the consequences of the loss of “Ted

Kennedy’s” seat in the Senate—a senatorial election that turned on

opposition to this particular measure in Massachusetts of all

places.

196

Suppose this Act is also perceived to be an important rea-

son why Democrats lost control of the House of Representatives in

an election in which Democrats ran away from the Act to avoid de-

feat.

195

See, e.g., BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS

INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION

(2009).

196

See Michael Cooper, G.O.P. Senate Victory Stuns Democrats, N.Y.TIMES, Jan. 20, 2010,

at A1, available at, http://www.nytimes.com/2010/01/20/us/politics/20election.html.

New York University Journal of Law & Liberty [Vol. 5:581

636

Now, I am not suggesting that the Supreme Court would strike

down the individual mandate simply because a majority perceived

it to be unpopular. But I do think that, if the Court views the Act as

manifestly unpopular, there may well be five Justices who are open

to valid constitutional objections they might otherwise resist. This

then returns us to the dubious justifications of the mandate based

on the Commerce and Necessary and Proper Clauses or the tax

power.

If the Act continues to be perceived as unpopular, I doubt that a

majority of the Court would stretch the “essential to a broader

scheme” doctrine to reach inactivity and authorize economic man-

dates. A majority of the justices would be quite comfortable limiting

the power of Congress to reaching activity under the “necessary”

prong of the Necessary and Proper Clause since doing so would

affect only one law: the Patient Protection and Affordable Care Act.

Perhaps most importantly, none of what is sometimes called by

law professors the “New Deal Settlement” would be called into

question by refusing to extend the substantial effects doctrine to

inactivity or by forbidding the commandeering of the people as a

means of regulating interstate commerce, thereby barring economic

mandates. The minimalist character of this theory is likely to appeal

to Chief Justice Roberts, as well as Justices Kennedy, Alito and

Scalia.

Moreover, both Justices Thomas and Scalia would immediately

see that an economic mandate must not only be necessary, it must

also be proper. These Justices would also realize that the logic of

Justice Scalia’s opinion in Printz could rather simply be carried over

to this novel claim of congressional power. Justice Scalia could

write in his sleep the opinion holding that economic mandates in

general, and the individual insurance mandate in particular, consti-

tute an improper commandeering of the people.

True, extending its anti-commandeering doctrine from the

states to the people would be novel, but this is due entirely to the

novelty of the individual mandate itself. Before Congress attempted

to commandeer the American people, the Court never needed to

explain why such a thing was improper. The same was true when

2010] Commandeering the People

637

the Court for the first time developed its anti-commandeering doc-

trine in the 1990s. As Justice Scalia observed, “[f]ederal comman-

deering of state governments is such a novel phenomenon that this

Court’s first experience with it did not occur until the 1970’s.”

197

The first commandeering of the people as a means of regulating

interstate commerce occurred in 2010 and immediately triggered a

widespread and sustained popular outcry.

The anti-commandeering principle precisely identifies why the

individual mandate has so riled the American people. Ordinarily,

persons are responsible for their failure to act–or omissions–when

they have a preexisting duty to act. A mandate to act, therefore,

presupposes the existence of a duty. But unlike the type of preexist-

ing fundamental duties that have traditionally been recognized,

such as the duties to defend one’s country and provide the revenue

needed to maintain its governance, there is no fundamental duty of

citizenship to enter into contracts with private parties when Con-

gress deems it convenient to the regulation of interstate commerce.

Upholding such mandates would truly turn citizens into subjects.

Either the national government has unlimited power over the

people or its powers are limited. If the latter, there must be some

limit to the Necessary and Proper Clause. Courts could limit its

scope by examining the substance of each law to see if it is truly

necessary, but this they have declined to do. Instead, the Court has

developed formal doctrines to identify when an exercise of power is

incidental to the regulation of commerce, and when it is remote and

unnecessary. If, however, Congress is allowed to regulate any deci-

sion that has an economic effect, or that Congress deems essential to

its regulatory ambitions, then the scheme of limited and enumer-

ated powers would be at an end. Because it is both unnecessary un-

der existing doctrine and also improper, the individual health in-

surance mandate is unconstitutional.

197

Printz v. United States, 521 U.S. 898, 925 (1996).