Posted by Randy Barnett:
Is Mandatory Health Insurance Unconstitutional?:
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253290664
In the The Politico's Arena, we are debating Rivkin and Casey's Wall
Street Journal Op-ed that Jonathan notes below. While my take on this
issue differs somewhat from his, in my contribution ([1]here), I
respond to [2]this rather catty post by Washington & Lee law professor
Timothy Stoltzfus Jost. This is what I wrote:
OK, let's be old fashioned and start with what the Constitution
says. After the Preamble, the very first sentence of the
Constitution says "All legislative powers herein granted shall be
vested in a Congress of the United States. . . ." And again the
Necessary and Proper Clause gives Congress the power "To make all
laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this
Constitution in the government of the United States, or in any
department or officer thereof." The Tenth Amendment is not required
to see that Congressional power must be found somewhere in the
document.("Tenthers"? What's next? "Firsters"? "Necessary and
Proper Clausers"?Enough with the derogatory labels, already.) So
where in the document is the power to mandate that individuals buy
health insurance?
The power "to regulate commerce . . . . among the several states"?
This clause was designed to deprive states of their powers under
the Articles to erect trade barriers to commerce among the several
states. It accomplished this by giving Congress the exclusive power
over interstate sales and transport of goods (subject to the
requirement that its regulations be both "necessary and proper").
It did not reach activities that were neither commerce, nor
interstate. The business of providing health insurance is now an
entirely intrastate activity. Reduce...
The "spending power"? There is no such enumerated power. There is
only the enumerated power to tax. Laws spending tax revenues are
authorized, again, if they are "necessary and proper for carrying
into execution the foregoing powers." So we return to the previous
issue: what enumerated end or object is Congress spending money to
accomplish?
But following the text of the Constitution is so Eighteenth
Century. Professor Jost tells us that "a basic principle of our
constitutional system for the last two centuries has been that the
Supreme Court is the ultimate authority on the Constitution, and
the Constitution the Court now recognizes would permit Congress to
adopt health care reform." So the Supreme Court gets to rewrite the
written Constitution as we go along.
Never mind Dred Scott, Plessy, Korematsu and other not-so-famous
Supreme Court "mistakes." The Constitution was what the Supreme
Court said it was--until it changed its mind. And the Supreme Court
has certainly not limited either the enumerated commerce power or
the implied spending power to the original meaning of the text.
Fine. But has the the Constitution of the Supreme Court been
extended to include mandating that individuals buy insurance?
Professor Jost admits "the absence of a clear precedent." Really!
So what has the Supreme Court's Constitution told us about the
Commerce Clause Power? Professor Jost cites the medical marijuana
case of Gonzales v. Raich.
As Angel Raich's lawyer, who argued the case in the Supreme Court,
I think the Court erred (6-3) in reading the interstate commerce
power broadly enough to allow Congress to prohibit you from growing
a plant in your back yard for your own consumption. By all
accounts, however, this is the most far reaching interpretation of
the Commerce Power ever adopted by a majority, exceeding the reach
of the past champion, Wickard v. Filburn. But even the six Justices
in the majority did not say that Congress had the power to mandate
you grow a plant in your back yard. Do you think a majority would
find that power today?
Perhaps. But under Professor Jost's approach to constitutional law,
we must await the Supreme Court's ruling before we know what "the
Constitution" requires or prohibits. Until then, the Supreme
Court's First Amendment still gives even "two former Bush
officials" the right to publish their opinion that the written
Constitution delegates to Congress no such power, provided of
course they are not trying to influence the outcome of a federal
election. Maybe a bare majority will decide this matter by
reviewing the text. Stranger things have happened. After all,
without any precedent standing in their way, a majority of the
Supreme Court decided to follow the original meaning of the text of
the Second Amendment in DC. v. Heller.
And when we are done examining Congress's power to mandate that you
buy a particular service--or pay a fine, er "tax"--we can then
consider its power to restrict the exercise of a person's
fundamental right to preserve his or her life.
References
1.
http://www.politico.com/arena/perm/Randy_Barnett_8256A4EF-01E6-4207-B4E8-C761F2FDB5BF.html
2.
http://www.politico.com/arena/perm/Timothy_Stoltzfus_Jost_720E1BE2-3EFE-448A-A519-968F31212226.html
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