Tuesday, February 01, 2011

Strike Two Against the Individual Mandate

A US District Court in Florida (R. Vinson, judge) issued summary judgment in support of 26 states who had brought suit against the Patient Protection and Affordable Care Act. The judge in the case considers two routes to a constitutional basis, flowing directly from the Commerce Clause and secondarily, resting on the Necessary and Proper Clause. As to the Commerce Clause, the telling summary is as follows:
Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

As expected, the key point is that the Act requires action from an otherwise passive citizen, and this is not what the Commerce Clause permits, as defined in all previous Supreme Court decisions or by the Founders.

The Court secondarily turns to justifying the individual mandate on the basis of the Necessary and Proper Clause:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The argument here is a bit more convoluted in my humble opinion, but the judge's decision is clear:
The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established “outer limits” of the Commerce Clause and effectively remove all limits on federal power.

Again in my humble opinion, the Necessary and Proper Clause issue is an important one, and I do not find Judge Vinson convincing. It is a hard one -- if regulation of the insurance industry is the desired and constitutional end (justified via Commerce Clause) then isn't the individual mandate a necessary and proper means to that end?
It seems to me that one line of argument raised by Judge Vinson but not adequately argued is the difference between means and ends. I don't quite view the individual mandate as a means, but more of an end in itself. The language of the Clause is what I point to -- authorizing laws necessary for "carrying into execution." I can see the Constitutional basis of requirements for keeping records, or for creating criminal statutes for enforcing laws based on Constitutional powers. But is the individual mandate really a law necessary for "carrying into execution" the rest of the PPAC Act? Or is it an integral part of the Act itself, part of the ends that are being desired?

Another possible line of inquiry is that the individual mandate steps into territory that is normally reserved by the States -- a sure limiting factor to application of the Necessary and Proper Clause. The fact that Massachusetts already instituted a state level individual mandate would support this line of thinking.

Certain of Judge Vinson's words are being picked up by liberals, especially this part:
It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Do you see Tea Party written all over that? Time for a Rorschach Test!

1 comment:

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I start with the last thing you said about "Time for a Rorschach Test" and I second that, that way we can see their true personalities and to know how they are really are