Having spent a lot of time last week accusing health care reform's legal critics of bad faith, let me respond to one to whom that description does not apply: David Hogberg. Hogberg writes about health care for Investor's Business Daily. Once upon a time, he wrote for the American Spectator. I know, those are not two of the publications that first come to mind when you think about nuanced policy writing. But Hogberg knows a lot about health care. I agree with him rarely but he seems like a congenial guy, based on our limited interactions. And, more important, I've always known him to argue fairly and cogently.
So it got my attention last week when he questioned my suggestion that a ruling overturning the Affordable Care Act's individual mandate would qualify as "judicial activism." I stand by my argument, but I know that he's not the only one who questions it. Let me explain my rationale.
For the last few weeks, ever since it's become clear that the Affordable Care Act was in real legal jeopardy, advocates on both sides have been arguing about the limits of federal authority to levy taxes, regulate interstate commerce, and do what is "necessary and proper" for carrying out its enumerated duties. As I've written and, hopefully, made very clear, I think it's possible to construct a coherent, intellectually honest for both sides of this argument. Judges must decide what they think the constitution's ambiguous text means and, inevitably, different judges with different worldviews will come to different conclusions.
But I don't think it's possible to deny that ruling against the Affordable Care Act would be an act of judicial activism, in the sense that such a decision would necessarily mean re-interpreting and even rejecting the precedents on these questions that have prevailed for many decades. That's particularly true when it comes to the theoretical limits of the commerce and necessary-and-proper clauses, which since the 1930s the Supreme Court have interpreted very broadly--so broadly, in fact, as to permit virtually any government regulation of even quasi-economic activity.
The only significant limits the court has drawn were in a pair of cases during the Rehnquist era, when majorities threw out laws on gun control and then domestic violence on the theory that neither really had any relationship to commerce. But the court later affirmed, in a decision about marijuana cultivation, that it still interpreted the Commerce Clause as giving the federal government wide latitude when it comes to managing the nation's economy.
Of course, I am not a legal scholar. And while I've consulted with many legal scholars while researching and then arguing for my own position, I am sure that some readers (like Hogberg) are skeptical that I know what I'm talking about.
But David Cole is an actual law professor, at Georgetown. And, in a new essay for the New York Review of Books, written in response to Judge Henry Hudson's ruling from the fall, Cole makes the case that throwing out the individual mandate would be a bold act of revision:
Judge Hudson’s decision reads as if it were written at the beginning of the twentieth rather than the twenty-first century. It rests on formalistic distinctions—between “activity” and “inactivity,” and between “taxing” and “regulating”—that recall jurisprudence the Supreme Court has long since abandoned, and abandoned for good reason. To uphold Judge Hudson’s decision would require the rewriting of several major and well-established tenets of constitutional law. ...
Judge Hudson’s reasoning is not without precedent—but the precedents that his rationale reflects have all been overturned. In the early twentieth century, the Supreme Court ruled that the Commerce Clause authorized Congress to regulate only “interstate” business, not “local” business; only “commerce,” not production, manufacturing, farming, or mining. The Court also ruled that Congress could regulate only conduct that “directly” affects interstate commerce, not conduct that “indirectly” affects interstate commerce. Like Judge Hudson, the Supreme Court warned that unless it enforced these formal categorical constraints, there would be no limit to Congress’s power. Thus, for example, in 1936, the Court struck down a federal law that established minimum wages and maximum hours for coal miners, reasoning that mining was local, not interstate; entailed production, not commerce; and had only “indirect” effects on interstate commerce. Using this approach, the Court invalidated many of the laws enacted during the early days of the New Deal.
Around 1937, however, the Court reversed course. It recognized what economists (and the Court’s dissenters) had long argued, and what the Depression had driven home—that in a modern-day, interdependent national economy, local production necessarily affects interstate commerce, and there is no meaningful distinction between “direct” and “indirect” effects. In the local, agrarian economy of the Constitution’s framers, it might have made sense to draw such distinctions, but in an industrialized (and now postindustrialized) America, the local and the national economies are inextricably interlinked.
As a result, Congress’s power to regulate “interstate commerce” became, in effect, the power to regulate “commerce” generally. The Court rejected as empty formalisms the distinctions it had previously drawn, between local and interstate, between production and commerce, and between “direct” and “indirect” effects. ...
On this theory, the Supreme Court has upheld federal laws that restricted farmers’ ability to grow wheat for their own consumption and that made it a crime to grow marijuana for personal medicinal use, even though in both instances the people concerned sought to stay out of the market altogether. The Court reasoned that even such personal consumption affects interstate commerce in the aggregate by altering supply and demand, and that therefore leaving it unregulated would undercut Congress’s broader regulatory scheme.
Under these precedents, a citizen’s decision to forgo insurance, like the farmer’s decision to forgo the wheat market and grow wheat at home, easily falls within Congress’s Commerce Clause power. When aggregated, those decisions will shift billions of dollars of costs each year from the uninsured to taxpayers and the insured. As a practical matter, there is no opting out of the health care market, since everyone eventually needs medical treatment, and very few can afford to pay their way when the time comes. (Those who refuse all medical treatment for religious scruples are an exception, but they are exempt from the mandate.) That one might affix the label “inactivity” to a decision to shift one’s own costs to others does not negate the fact that such economic decisions have substantial effects on the insurance market, and that their regulation is “an essential part of a larger regulation of economic activity.”
Cole goes on to explain why overturning the mandate would require drawing new limits on both the taxing and "necessary and proper" clauses--the latter of which, contrary to what both Judge Hudson and later Judge Roger Vinson implied, has separate meaning above and beyond the power merely to regulate interstate commerce itself.
Before anybody accuses me of hypocrisy, I should make clear that I am not opposed to judicial activism in principle. But I'm also willing to defend it as such, on the merits of the constitutional vision I believe should prevail. Had I been around in the the 1930s, for example, I would like to think I would have argued the previous decisions striking down Progressive Era and New Deal legislation interpreted the government's power too narrowly.
What bothers me (well, one of the things that bothers me) is that so many critics of the Affordable Care Act act as if it is the individual mandate itself, not their interpretation of the constitution, that represents a radical break with the past. I just don't see that and neither, apparently, do a lot of other people who follow the law more closely than I do.
One final reason to read Cole's article: I think he gets at the real import of this case, which (as I've also argued) is less about formalistic distinctions in constitutional interpretation than it is about the broad meanings of liberty and obligation in a modern society:
Opposition to health care reform is ultimately not rooted in a conception of state versus federal power. It’s founded instead on an individualistic, libertarian objection to a governmental program that imposes a collective solution to a social problem. While Judge Hudson’s reliance on a distinction between activity and inactivity makes little sense from the standpoint of federal versus state power, it intuitively appeals to the libertarian’s desire to be left alone. But nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others. So rather than directly claim such a right, the law’s opponents resort to states’ rights.
P.S. My items last week generated a lot of reaction and criticism, much of it in the TNR comments sections. I'll try to address a few more of the arguments over the next few days.