Legal Commentary

Michigan District Judge Decides ?Issue of First Impression? by Creating an ?Economic Decisions? Doctrine

By Randy Barnett

As Ilya notes, District Court Judge Steeh today dismissed a claim that the Patient Protection and Affordable Care Act exceeds Congress authority under the Commerce Clause. I agree with his assessment of the opinion, with one exception. I do not believe Judge Steeh relied upon existing Supreme Court doctrine because of his claim that this was a case ?of first impression? and therefore not covered by that doctrine. This presents a new debate: Has the Supreme Court covered the field with its current Commerce and Necessary & Proper Clause argument, in which case lower courts are bound to hold the Act is unconstitutional because it extends beyond this doctrine? Or does the unprecedented nature of the individual mandate render this a case ?of first impression? requiring new doctrine that lower courts are free to invent? 

Beyond this, here is a statement I have released to be posted on the just-launched Health Care Lawsuits website.

In the course of dismissing the plaintiff?s Commerce Clause challenge, the Judge Steeh has vindicated an important element of all such pending challenges: this claim of power by the government is without any precedent in experience or in law. In Judge Steeh?s words:

?The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.?

Never before in American history has the U.S. Government imposed an economic mandate commanding that persons engage in economic activity. Given that there is no current Supreme Court doctrine recognizing such power in Congress, the appropriate stance of a district court judge is to follow Supreme Court precedent and deny this claim of power until the Supreme Court decides in due course to expand its doctrine.

Instead, Judge Steeh accepted the government?s expansion of Congressional power beyond regulating economic activity to regulating economic ?decisions?:

?While plaintiffs describe the Commerce Clause power as reaching economic activity, the government?s characterization of the Commerce Clause reaching economic decisions is more accurate.?

But this was not ?plaintiff?s description.? It was how the Supreme Court itself described its own doctrine in each and every Commerce Clause case that allowed Congress to reach wholly intrastate activity because it was necessary and proper to the regulation of interstate commerce. 

By inventing a new ?economic decisions? doctrine, Judge Steeh has gone beyond the Commerce and Necessary and Proper Clause doctrines established by the Supreme Court. Only the Supreme Court is authorized to expand its own interpretation of the scope of Congressional power.

Of course, judges in other challenges will have their opportunity to opine on whether Congress has the power to regulate any ?economic decision? that may substantially affect interstate commerce. The ?economic decision? not to buy a car, the ?economic decision? not to buy or sell your home, or even the ?economic decision? not to have a physical exam. For make no mistake. If the Supreme Court ever accepts the government?s ?economic decision? theory, then there is nothing it cannot mandate in the future in the name of regulating ?commerce . . . among the several states.? Congress will then have the general police power that both the Constitution and the Supreme Court has always denied it.

Full post as published by The Volokh Conspiracy on October 07, 2010 (boomark / email).