Yesterday the Federal Court of Appeals for the District of Columbia upheld the Affordable Care Act, otherwise known as Obamacare, against a constitutional challenge contending that the individual mandate of the Act — which forces all Americans to buy health insurance — violates the religious freedom of the plaintiffs and that Congress lacked the power to enact the law under the Commerce Clause of the United States Constitution. Most news reports on this case will note that the issues addressed by the D.C. Court of Appeals will be decided in the coming year by the U.S. Supreme Court and thus the decision does not mean much. Other outlets will observe, however, that the opinion was written by Senior Circuit Judge Lawrence Silberman, a stalwart conservative, and they will surmise that if Silberman upheld the law, it is likely that even the conservatives on the U.S. Supreme Court will conclude that the enactment of Obamacare did not exceed Congress’s constitutionally-granted powers. These latter observers are correct that Silberman is generally conservative in his jurisprudence, but they would be wrong in believing that the High Court’s conservatives must or will follow Silberman’s reasoning.
In its simplest form, the plaintiffs’ argument maintained that Congress lacks the power under the Commerce Clause to force Americans into the market to buy health insurance when they have not already done so and have no desire to do so. In essence, the plaintiffs argued that Congress can only regulate existing commerce, and those who do not possess health insurance are not in the market and thus cannot be forced to join it through congressional mandate.
Silberman essentially concludes that Obamacare falls within Congress’s power under the Commerce Clause for two reasons. First, he claims that the language of the Commerce Clause does not impede Congress from forcing all Americans to buy health insurance. Silberman explains:
“We look first to the text of the Constitution. Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (emphasis added). At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as “[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument. So we turn to Supreme Court decisions.
“The Framers, in using the term ‘commerce among the states,’ obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. See Lopez, 514 U.S. at 553-61; id. at 568-75 (Kennedy, J., concurring). Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. See United States v. Morrison, 529 U.S. 598, 610, 615-19 (2000); Lopez, 514 U.S. at 558-61, 566-67. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior –- if only decisions whether or not to purchase health care insurance or to seek medical care -– that does substantially affect interstate commerce.”
Second, Silberman states that the individual mandate is analogous to a program upheld by the U.S. Supreme Court in the infamous case of Wickard v. Filburn:
“We think the closest Supreme Court precedent to our case is Wickard v. Filburn, 317 U.S. 111 (1942). There, a farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Id. at 114-15, 118-19. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any maket, could affect the national price, and therefore was within Congress’s commerce power. Id. at 127-28. This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even ‘if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.’ Wickard, 317 U.S. at 128 (emphasis added). Justice Jackson thus recognized that the Act ‘force[d] some farmers into the market to buy what they could provide for themselves.’ Id. at 129. Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. See Raich, 545 U.S. at 20. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s ‘activity’ could be as incidental to the regulation as simply owning a farm.”
That Silberman would contend that the individual mandate is permissible under the precedent of Wickard is not surprising. Wickard is, without question, the worst Commerce Clause decision in U.S. Supreme Court history. Its implication is that there are no boundaries to the power of regulating interstate commerce. Indeed, in a remarkable passage in yesterday’s opinion, Silberman admits that the lack of any limitation on the Commerce Clause power — which is the inevitable conclusion of upholding the individual mandate — gives him some pause.
“We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. Cf. Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2272 (2009) (Roberts, C.J., dissenting). It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.”
(Emphasis added.)
Thus, Silberman looks past the fact that upholding the individual mandate means that Congress could require individuals to purchase anything in the marketplace without limitation simply by observing that the health insurance market is “unique” in the sense that everyone eventually uses health services. This is hardly comforting as one can come up with a multitude of items that everyone, or nearly everyone, uses in the marketplace, such as food, clothing, transportation, housing, etc. Imagine if Congress decided that for the good of the national economy everyone must purchase a General Motors vehicle or that all must buy only a particular type of meat. The government was unable to tell the D.C.Circuit Court why Congress would not have the power to impose such mandates under the Commerce Clause, and Judge Silberman could not think of a reason either.
The basis of this stream of thought appears to be the understanding that there are no limits on the interconnectedness of the national economy. As Silberman observes:
“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants’ argument; its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce.”
We now arrive at the core of the problem with Silberman’s analysis. Silberman makes the seemingly straight-faced claim that the text of the Commerce Clause does not limit the power of Congress to require an individual mandate, but then he accepts the U.S. Supreme Court’s “shift” in the definition of the term “commerce” in the Constitution for the apparent reason that it merely recognizes an economic reality. Notice that Silberman declines to define the common understanding of the term “commerce” at the time the Constitution was adopted. I assume Silberman avoids the issue because of his acknowledgment that the U.S. Supreme Court has changed the definition of “commerce” in such a way as to obliterate any previously recognized limitation on power contained in the term. Of course, this is nothing new for the High Court, as it has redefined a host of terms in the Constitution, such as “the establishment of religion,” “the freedom of speech, and “due process,” just to name a few notable examples. Just because the Supreme Court has changed the definitions of those terms, however, does not make it correct (or even the law). In fact, the whole point of originalist jurisprudence is to challenge the notion that the terms of the Constitution change –- or as progressives like to put it “evolve” — over time to suit the needs and assumptions of the current generation.
The question that needs to be asked is whether the modern economy as the world understands it must be synonymous with “commerce” as it is understood in the Constitution? If the test for what Congress can regulate revolves around whatever “substantially affects” interstate commerce, then it naturally follows that Congress can regulate anything because any choice an individual makes conceivably could affect the economy in some way (the term “substantially” is a uselessly vague modifier). The point of the Constitution, however, was to create a federal government with enough power to achieve the ends required to sustain a sovereign nation comprised of numerous individual states without giving the federal government so much power that the states and individuals became superfluous. To that end, as James Madison put it in Federalist No. 45, “[t]he powers delegated by the proposed Constitution to the federal government, are few and defined.” The Commerce Clause is one of those defined powers. Granting the federal government the power to impose an individual mandate on all Americans via the Commerce Clause removes all limitations on federal power, as Silberman admits, by interpreting any activity engaged in by individuals (or even not engaged in as here, where people who have not purchased insurance are forced to do so) as “affecting interstate commerce.”
Thus, interpreting the Commerce Clause in a way that envisions no boundaries on what constitutes economic activity destroys the very purpose of the Constitution in listing specific, defined powers for the federal government. I would suggest that an interpretation of the Constitution that undermines the fabric of its existence cannot be correct.
“Commerce,” at the time of the Founding, concerned the selling and trading of goods. Justice Thomas conveniently summarized the definition in his dissent in Gonzales v. Raich, 545 U.S. 1 (2005):
“As I explained at length in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586-589, 115 S.Ct. 1624 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term ‘”commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes.’ Id., at 585, 115 S.Ct. 1624 (THOMAS, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586-587, 115 S.Ct. 1624 (THOMAS, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term ‘commerce’ is consistently used to mean trade or exchange-not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (THOMAS, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L.Rev. 101, 112-125 (2001). The term ‘commerce’ commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L.Rev. 847, 857-862 (2003).”
545 U.S. at 58-59.
Employing the original definition of the term “commerce” may seem arcane and inefficient in the age of an instant global economy, but limiting the definition serves the extremely important function of preserving our system of governance. It is a system that insists that power flows from the people to the government and that government exists to serve the people, not the other way around. One would think that a judge like Lawrence Silberman would understand this, but we now must turn to the justices of the Supreme Court to see if they can grasp it.
