Legal Commentary

Some Additional Thoughts on the Michigan Decision Upholding the Individual Mandate

By Randy Barnett

Judge Steeh?s decision yesterday dismissing the Commerce and Necessary and Proper Clause challenge to the individual mandate was certainly not welcome news to those of us who believe the mandate to be unconstitutional. But his remarkably thin opinion brings to the fore the revolutionary implications of upholding the individual mandate without addressing them.

First, that some, perhaps all, federal district judges considering these challenges would uphold the statute was foreseeable. When these challenges were brought, no one believed that all constitutional challenges would be upheld by every district court judges who would consider them. Few believed that any district court judge would have the fortitude to strike down the mandate, regardless of how the Supreme Court might ultimately rule. Heck, many doubt that the Supreme Court has the fortitude to strike down so major a piece of legislation.

Second, as I mentioned yesterday, calling this an ?issue of first impression,? as Judge Steeh did, highlights the unprecedented nature of this claim of power. It expressly undercuts any claim that the mandate is constitutional under existing Supreme Court Commerce and Necessary & Proper Clause doctrine. Indeed, it was necessary for the judge to claim that there was no existing Supreme Court doctrine applicable to the mandate to justify his adopting the government?s novel ?economic decisions? theory.

Third, by simply adopting the government?s ?economic decisions? theory, and rejecting ?economic activity? as an existing limiting doctrine, Judge Steeh?s opinion clearly exposes the expansionary nature of this claim of power. At the same time, he fail to seriously address any objections to this theory. Judge Steeh provided the other district judges considering the AG?s challenges in Virginia and Florida with no reasons to uphold the mandate beyond those already provided to them by the government in its brief. So, other than the fact that another federal judge found the government?s argument persuasive, Judge Steeh?s decision provided no additional reasons for upholding the mandate that they did not already know. 

Fourth, and most important: Judge Steeh offers no limiting principle to the ?economic decisions? theory. His acceptance of the government?s argument that the health insurance market is ?unique? is window dressing. Allowing Congress to regulate all ?economic decisions? in the country because Congress has a rational basis for thinking such mandages are essential to its regulation of interstate commerce cannot and will not be limited to the sort of public goods argument offered in support of this mandate. Given that his decision, on his own account, is expanding federal power beyond existing Supreme Court doctrine, was it not incumbent upon him to deal with the slippery slope issues raised by his newly-minted ?economic decisions? doctrine? 

Yet, like the government, Judge Steeh is silent on the radical implications of accepting this new doctrine. Imagine all the slippery slope questions in oral argument when the ?economic decisions? doctrine is more seriously considered than it was by Judge Steeh. Conversely, there are zero slippery slope objections to striking down all economic mandates that reach inactivity. Why? Because the individual insurance requirement is the only such economic mandate ever enacted. So it is the only law that would be unconstitutional if the Supreme Court concludes that Congress has no such power to impose economic mandates under the Commerce and Necessary & Proper Clauses.

For all these reasons, Judge Steeh?s opinion yesterday serves to highlight for other judges, and Justices, the truly revolutionary implication of upholding this mandate without even attempting to deal with these implications. In this way, it actually contributes to the constitutional case against the individual mandate.

Full post as published by The Volokh Conspiracy on October 08, 2010 (boomark / email).