Positive Steps, Silver Linings

[Geee]

National Review:

The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate seemed within reach. But despair is unwarranted. The negative consequences of the ruling for constitutional law are actually quite limited, and there is much in it upon which to build.

The constitutional battle was largely a defensive one. The primary challenge to the individual mandate was an effort to prevent further expansion of Congress’s already-inflated authority under the Commerce Clause. From the New Deal to 1995, Congress exercised its commerce power without meaningful restraint. Only during the later years of the Rehnquist Court did the justices finally say “Enough,” in United States v. Lopez (1995) and Morrison v. United States (2000). Yet even these decisions did not prevent the Court from upholding the federal government’s authority to prohibit simple possession of medical marijuana apart from commercial activity, in Gonzales v. Raich (2005).

With the individual mandate, Congress tried to stretch beyond its well-established authority to regulate “commerce,” or even commercial “activity,” and control an individual’s decision to abstain from commerce or commercial activity. Prior Commerce Clause cases had hinged on whether Congress had the authority to regulate a given “class of activity,” such as growing wheat (yes) or possessing a gun near a school (no). But regulating inactivity was something Congress had never done before.

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Since a mandate to make purchases from a private company was unprecedented, the case did not require the Court to revisit its earlier Commerce Clause decisions. The challenge was a rear-guard action, not a frontal assault on existing doctrine. Nevertheless, the stakes were high. The federal government’s theory of the Commerce Clause, if adopted by the Court, would have dealt a serious new blow to the principle that the federal government has limited and enumerated powers. In ruling that the mandate was unconstitutional, the Eleventh Circuit had concluded that the government’s Commerce Clause theory would “obliterat[e] the boundaries inherent in the system of enumerated congressional powers.” A majority of the Supreme Court endorsed this view. Chief Justice Roberts wrote that the government’s position “would open a new and potentially vast domain to congressional authority,” warning that it would “fundamentally chang[e] the relation between the citizen and the Federal Government.”