06/21/2012 11:44 am ET Updated Aug 21, 2012

Umpires, the Affordable Care Act and the Rule of Law

The Court will soon issue its decision on the Affordable Care Act (ACA). No one knows what the Court is going to do (perhaps even the Court doesn't know yet). But, if law mattered to the Court, there would be no suspense.

There are three constitutional provisions relevant to the validity of the individual mandate section of the ACA. Article I, Section 8, gives Congress the power to regulate commerce among the states, and Article I also gives Congress the power to make all laws necessary and proper to carry out the functions of government. The other relevant provision, the Tenth Amendment, says that all powers not "delegated" to Congress are reserved to the states or to the people.

Health care represents roughly one-sixth of our nation's economy and we spend over two trillion dollars on health services and insurance. The ACA is a roughly 2000 page law that comprehensively (for better or worse) regulates this trillion dollar industry. There is no reasonable argument that the regulation of health care and health insurance is not a law regulating "commerce among the states."

Since the New Deal, the Congress has passed thousands of laws dealing with commerce and the Supreme Court has invalidated only two of them. One prohibited gun possession around schools and one created a civil remedy for gender related violence. In both cases, by 5-4 majorities, the Court said that neither gun possession nor domestic abuse were commercial activities. There can be no reasonable argument that health care and health insurance are not commercial activities.

There are three popular arguments supporting the invalidity of the individual mandate. First, some argue that the regulation of inactivity (or the decision not to buy a product), is beyond Congress' power. Second, some argue that if Congress can force Americans to buy a commercial product, then there will be no limit to Congress' powers, and that would violate the Tenth Amendment. Third, some argue that Congress has never before required Americans to buy a commercial product and thus it must not have the power to do so.

All three arguments are without merit if law matters. There is no provision in the Constitution, not one word, that suggests Congress cannot require people to but commercial products if doing so is part of a or reasonably related to a regulation of commerce among the states. There are many things Congress cannot do in the guise of regulating commerce: it cannot abridge speech, establish a religion, impose a cruel and unusual punishment, or authorize an unreasonable search or seizure. But, the Constitution is silent about mandates and therefore Congress can use them if doing so is reasonable related to one of its enumerated powers-like the commerce clause.

Second, the Tenth Amendment says nothing about commerce, mandates, inactivity, or the required purchase of commercial products. It does say that powers not delegated to Congress are reserved to the states or to the people. Because the text does not support the invalidity of the mandate, some argue that the Tenth Amendment stands for the principle that Congress does not have unlimited powers and allowing Congress to require the purchase of a commercial product gives it unlimited powers. This argument ignores numerous obvious limitations on Congress' power that would remain even if the mandate is upheld (it is mysterious why the government has done such a poor job explaining this).

The commerce clause would not allow Congress to require you to set a bed time for your children, jog three times a week, or play bridge with your neighbors. There are an infinite number of non-commercial activities Congress could not require or prohibit (including possessing guns around schools or providing a civil remedy for domestic abuse). Moreover, other constitutional provisions also limit Congress' commerce power such that regulations infringing speech or personal bodily integrity would not be permitted. Finally, even commercial laws have to be reasonably related to a legitimate governmental interest. This reasonableness requirement is the limit on almost all of Congress' powers and it forms the basis of most of constitutional law. There is no reason it should not apply to the mandate as well.

Perhaps the least persuasive of all the arguments against the mandate is that because Congress has never used one before, it can't now. There is no provision in the Constitution that says Congress can't exercise new powers that are reasonably related to its enumerated powers. There was a time when this country didn't have an Air Force, a Federal Trade Commission, or a Department of Homeland Security. In 1819, Chief Justice Marshall said that the Court should never forget that "it is a Constitution we are expounding." He meant that Congress must be able to use its powers broadly and flexibly as times change, as long as it has the enumerated power to do so. The regulation of health care is the regulation of commerce among the states.

During his confirmation hearings, Chief Justice Roberts said the following: "Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them."

The rules of law governing the constitutionality of the ACA are as clear as any case that has been litigated in the Supreme Court since the New Deal. Only by making up their own rules could the Justices not find that the regulation of a 2 trillion dollar industry through a comprehensive 2000-page law is not a regulation of commerce among the states. We will soon find out whether the Justices apply the rules of the Constitution or make up their own rules.

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