Somin on Sixth Circuit Decision on Individual Mandate

Professor Ilya Somin says the Sixth Circuit’s ruling week that the individual mandate of federal health care reform is constitutional undermines federalism, misconstrues the boundaries of congressional authority, and lays the groundwork for countless federal mandates.

The Sixth Circuit was the first of several appellate courts to rule in a case concerning the individual mandate, with three other appellate courts due to weigh in over the next few months.

The court’s decision, and especially the concurrence of a conservative jurist on the court, Judge Jeffrey Sutton, is a clear setback for opponents of the mandate, says Somin.

“When and if the case gets to the Supreme Court, the mandate will be upheld if even one of the five conservative justices endorses Sutton’s reasoning,” Somin explains. “The four liberal justices have all consistently refused to impose any meaningful federalism-based limits on congressional power. These dynamics give mandate supporters an important advantage.”

Despite this, Somin believes serious weaknesses in Sutton’s argument make it “far from inevitable” that the Court’s conservatives will endorse Sutton’s reasoning.

Regulating Inactivity: A Radical Constitutional Departure, Jurist Legal News and Research, July 1, 2011. By Ilya Somin.

"The sweeping congressional power authorized by the Martin-Sutton rationale makes a hash of the text of the Constitution, which gives Congress the power to regulate 'Commerce ... among the several states,' not a blanket power to mandate anything that has a 'substantial' economic effect.

"At the time of the Founding, the framers and ratifiers of the Constitution consistently interpreted the Commerce Clause as only giving Congress the power to regulate transportation and trade in goods and services that crossed state lines. Even Alexander Hamilton took this view, the strongest advocate of broad federal authority among the Founding Fathers. This was also roughly the approach adopted by the Supreme Court during the first 150 years of American history.

"The Martin-Sutton approach also makes most of the other congressional powers listed in Article I redundant. For example, there would be no need for a separate power to tax. After all, failure to give the government some of your money voluntarily surely has substantial economic effects. Therefore, virtually any tax could be imposed through the Commerce Clause, making the Tax Clause superfluous. Similarly, failure to serve in the armed forces surely has substantial economic effects. The Commerce Clause therefore authorizes Congress to impose a draft and purchase military equipment, thereby making the power to 'raise and support' armies superfluous.

"The Sixth Circuit ruling would still be defensible if it were compelled by Supreme Court precedent. However, both Martin and Sutton recognized that the Supreme Court has never previously ruled on a case involving a mandate of this type, and has also never previously addressed the issue of whether the Commerce Clause authorizes regulation of inactivity.

"Since the 1930s, a series of flawed Supreme Court decisions have expanded congressional Commerce Clause authority well beyond what the text of the Constitution permits. These rulings allow the federal government to regulate almost any 'economic activity.' These cannot be used to uphold the individual mandate. Far from engaging in economic activity, people who decide not to purchase health insurance are actually refraining from doing so."

Read the article