This essay for our symposium is by Ilya Somin, an Associate Professor at George Mason University School of Law. He has written amicus briefs on behalf of the Washington Legal Foundation, several members of Congress, and a group of constitutional law scholars in three of the cases challenging the individual mandate.
The Supreme Court may hear at least one of the cases challenging the constitutionality of the Obama health care bill’s individual mandate sometime during the next year. If it does, the result will have major implications for our system of constitutional federalism. If the federal government prevails, Congress is likely to have an unlimited power to impose mandates of any kind. If the plaintiffs win, the Court will have reaffirmed the importance of constitutional limits on federal power.Â
Twenty-eight state governments, the National Federation of Independent Business, and numerous others have filed lawsuits challenging the constitutionality of the mandate, which requires most Americans to purchase government-approved health insurance by 2014.  Â
Five district courts have ruled on the issue, with three judges upholding the individual mandate, and two striking it down. The Sixth Circuit Court of Appeals recently became the first appellate court to consider the question, upholding the mandate in a close two-to-one decision. Three other circuit courts are likely to rule in the next few months.
Prospects in the Supreme CourtÂ
If even one circuit court strikes down the law, the Supreme Court will almost certainly take the case. The Justices will not permit a situation where such an important law is valid in some parts of the country and not others. Even if every appellate court affirms, the Court might still take the case because of the importance of the issue.
To this point, a total of eight judges have ruled on the merits. Five have voted to uphold the law and three to strike down. With one important exception – Republican Judge Jeffrey Sutton of the Sixth Circuit – every Republican-appointed judge has voted to strike down the law and every Democrat has voted to uphold it. It is increasingly clear that there is no consensus view on the issue among judges and constitutional law experts. Â
Every judge who has ruled on the issue has recognized that Congress has never previously imposed a comparably sweeping mandate under the Commerce Clause, and that the Supreme Court has never ruled on the issue of whether Congress has a general power to regulate inactivity. Given the deep ideological divisions over the case and the lack of precedent clearly on point, the Court could easily rule either way. Â
Nonetheless, the federal government probably has a better chance than the plaintiffs. The Court’s four most liberal Justices have consistently refused to recognize any meaningful limits on Congress’s powers under the Commerce Clause. Thus, the mandate will be upheld if even one of the five conservatives votes in its favor. And the conservatives have often been a fractious bunch in federalism cases. For example, Justices Anthony Kennedy and Antonin Scalia voted to uphold a sweeping assertion of federal power in Gonzales v. Raich, which ruled that the power to regulate interstate commerce authorizes Congress to ban the possession of medical marijuana that had never crossed state lines or been sold in any market. Furthermore, the Court rarely strikes down major laws that are a central part of the political agenda of the president and his party. Â
At the same time, it is also possible that the conservative Justices will be unwilling to uphold the mandate because doing so is likely to give Congress unconstrained authority to impose virtually any other mandate. In the recent case of Bond v. United States, Justice Anthony Kennedy – a key swing voter – emphasized that constitutional constraints on federal power protect “the liberty of the individual†as well as “state sovereignty.†If the Court gives Congress unlimited power to impose mandates, that principle will be gutted. Thus, the Justices are likely to uphold the mandate only if they can find some way to do it without giving Congress a blank check to impose future mandates at will. Unconstrained congressional authority to impose mandates also goes against the text and original meaning of the Constitution, a consideration that might sway the originalists on the Court.
 Searching for limits
The federal government claims that Congress has the power to impose the mandate under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause of the Constitution. The logic of all three arguments leads to unconstrained congressional authority to impose other mandates.Â
All of the rulings upholding the mandate have so far focused on the Commerce Clause. The plaintiffs argue that the mandate exceeds the scope of Congress’s power to regulate interstate commerce because it is a regulation of “inactivity,†since it forces people to purchase health insurance merely on the basis of permanent residence in the United States.Â
In the Sixth Circuit case, Judge Sutton and Judge Boyce Martin resolved the issue by simply ruling that the Commerce Clause gives Congress the power to regulate inactivity on the same basis as “activity.†This approach pretty obviously leads to unlimited congressional power to impose mandates. Under current precedent, Congress can regulate any activity that it has a rational basis for believing that it affects interstate commerce, in the aggregate. That, of course, is true of virtually any activity of any kind. It is also true of virtually any failure to engage in activities, especially economic transactions. Â
Any failure to purchase a product has some substantial economic effect, at least when combined with similar failures by other people. This is true of failures to purchase broccoli, failures to purchase cars, and so on. Each of these choices affects the economy and leaves producers worse off than they would be if more people bought their products. Even failure to engage in noncommercial activity virtually always has similar effects. A mandate requiring people to eat healthy food and exercise  daily can be justified on the grounds that it would increase the demand for health food and gym memberships.
Recognizing this problem, the other judges who voted to uphold the individual mandate all relied on the notion that the health care market is special in some way, thereby permitting mandates that might be unconstitutional in other cases.
The most common “health care is special†argument is that  everyone eventually uses health care at some point, thereby making failure to purchase health insurance simply a decision to pay for health care later in some other way. But as Judge Henry Hudson pointed out in one of the opinions striking down the mandate, “the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation.†The fact that most people eventually use health care does not differentiate health insurance from almost any other market of any significance. By defining the relevant “market” broadly enough, one can characterize any decision not to purchase a good or service exactly the same way. Â
The argument relies on switching the focus from health insurance to “health care.†The same bait-and-switch tactic works for virtually any other mandate Congress might care to impose. Consider the famous example of the broccoli mandate raised by Judge Roger Vinson in the Florida case striking down the health insurance mandate. Not everyone eats broccoli. But everyone participates in the market for “food.†Indeed, the food market is even harder to avoid than the health care market. Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government’s argument. Similarly, although not everyone has a car, virtually everyone does participate in the market for transportation, thereby justifying a car purchase mandate.
Other “health care is special†arguments fare no better. Judge Gladys Kessler of the U.S. District Court for the District of Columbia argued that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? The answer seems to be that failure to purchase thereby has adverse economic effects on producers. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, producers are made economically worse off than they would be if the potential buyer had made a different decision.
The government’s Tax Clause argument also lacks logical limits. The Tax Clause claim holds that the individual mandate is really a tax because it imposes a monetary fine collected by the Internal Revenue Service on those who refuse to comply. If this logic is correct, it would also justify any other mandate enforced by a monetary penalty. In any event, the mandate is highly unlikely to prevail under the Tax Clause, since every court to have considered the claim so far has rejected it, including those who upheld the mandate under the Commerce Clause. They all held that the mandate is a penalty, not a tax. As President Obama put it in 2009, “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.â€
The Necessary and Proper Clause argument  for the mandate similarly lacks constraints. The Clause gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution” other powers Congress is granted by the Constitution.
The Supreme Court has defined “necessary” broadly to include anything that is “useful or convenient†for the execution of any federal power. Under this broad definition of “necessary,†the mandate probably qualifies. The federal government argues that requiring people to purchase health insurance is needed to ensure that people will not wait to buy health insurance until after they get sick, something they may be incentivized to do because the health care bill forbids insurance companies from turning away customers with preexisting conditions. But even if the mandate is “necessary,†it may not be “proper.†In cases such as Printz v. United States, the Court has emphasized that these are two separate requirements imposed by the Clause. Congressional legislation must meet both.
If the Clause allows Congress to adopt the individual mandate, the same logic would justify almost any other requirement Congress might impose on individuals, thereby gutting the principle of limited federal power. Pretty much any mandate could be defended as “useful or convenient†for the execution of one congressional power or another. Since the Court has ruled that the Commerce Clause gives Congress the power to regulate almost any “economic activity,” any purchase mandate will fly. Such a mandate can always be portrayed as part of an attempt to regulate the relevant market. A broccoli mandate, for example,  would be upheld as an effort to regulate the market in food.
Conclusion
If the Court upholds the individual mandate, it will not be able to do so in a logically consistent manner without opening the door to virtually any other mandate. As UCLA law professor Adam Winkler points out in his contribution to this symposium, the government’s numerous briefs in the various mandate cases all fail to explain how there can be any meaningful limits on federal power if the mandate is upheld. This creates a difficult dilemma for Justices who might be inclined to uphold this law, but also want to maintain limits on  congressional authority. The dilemma is exacerbated by the fact that this “slippery slope†problem is not merely theoretical. Many industries would be happy to lobby for laws requiring people to purchase their products, and Congress has a long history of enacting special interest legislation.
The Court’s rulings are not always logically coherent and this decision might not be either. Right now, the federal government is still the favorite to win. But its triumph is far from assured. The Court could well balk at the prospect of giving Congress an unlimited mandate to impose mandates.
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