Sympathy for the Commerce Clause

It seems that there is a consensus among non-right-wing legal thinkers that the constitutional challenge to the Affordable Care Act based on the commerce clause was more or less totally spurious — the distinction between regulating activity and regulating inactivity doesn’t stand up to even momentary scrutiny. There has also been considerable hand-wringing about the possible effects of this new precedent.

Yet is this really a big deal in practice? It seems as though the objection was a totally ad hoc “principle” that was adopted opportunistically in order to oppose this particular piece of legislation. It also seems as though the health insurance mandate is a pretty sui generis policy (read more in the insurance blog) — there aren’t a ton of policy wonks out there crafting plans to force Americans to buy things in the service of social justice or whatever. (The only parallel I can think of would be if Social Security were privatized and all Americans were required to invest in private retirement funds, a policy that I doubt liberals would support simply out of their new-found devotion to the idea that the government can make us buy things.) If the objection was developed in an ad hoc way to respond to this particular policy, which is itself fairly unique in terms of the relevant underlying structure in question, then does it actually have any consequences beyond this particular ruling?

(I mean, I know it signals that the court wants to limit federal power, but it’s not as though we were suddenly shocked to learn that conservative justices want to limit federal power — that’s just what it means to be a conservative judge. Having one more argument in their arsenal doesn’t seem to make any practical difference if it was always a question of making post-hoc rationalizations for what they wanted to do anyway.)

5 thoughts on “Sympathy for the Commerce Clause

  1. Opportunistic deployment of the commerce clause is the animating principle of most federal jurisprudence, as far as I can tell. It just depends on who is doing the deployment. This was a relatively rare case of its use towards liberal ends.

  2. I think one reason it’s potentially a biggish deal is that it reduces the predictability of the constitutionality of federal legislation, thus increasing its risk & thereby its political cost. Ad hoc rationales (especially ones that don’t make any sense to begin with, like this one) waste resources and cause problems, both in the legislature and in lower federal courts. And who knows for what instrumental purposes this bogus distinction may be deployed in non-Commerce Clause contexts? It’s not like this is guaranteed to be harmful, but it’s certainly not good news.

  3. I basically agree that I cannot come up with many examples for which this decision on the commerce clause will matter. Especially because it has been upheld that the taxing power of Congress is still basically all-powerful, so it would have to be (1) some law that punishes inaction, and (2) not regulated through taxes. I cannot imagine what that would be. Though, we will have to see.

    It seems much more likely that the new interpretations with the medicaid restrictions will matter, and a lot. If the argument is that once states except enough money from the federal government, they cannot merely threaten to take it away if the states don’t do what the federal government wants. Considering this is one of the major ways we get new regulations on states from a federal standpoint, exactly how this gets interpreted will matter (and it will probably matter that this was the only part of ACA ruling that had large appeal, with 7 justices basically agreeing on this point). So, medicaid is an issue. One assumes that highway funds would be an issue. Education funds? What else?
    If the strictest interpretation is held, that the federal government cannot threaten current federal money for changes of behavior to the states, that is pretty far-ranging . If it refers to only essential (whatever that will mean) money, that is obviously going to be more flexible for federal lawmakers.

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