Healthcare litigation about liberty, not insurance

BY JAY SCHWEIKERT

Several weeks ago, a federal judge in the Northern District of Florida ruled that the Affordable Care Act (ACA) was unconstitutional. He became the second federal judge to hold that the individual mandate requiring individuals to buy qualified insurance from private insurers exceeded Congress’s powers under the Commerce Clause and Necessary and Proper Clause. But despite the obvious political valence of this litigation, these cases are not about politics or healthcare. The real issue is our understanding of individual liberty and the proper role of the courts in a federal system of separated and limited powers.

Consider the following syllogistic argument against the individual mandate:

1. The Constitution creates a federal government of limited, enumerated powers.

2. It is the legitimate function of the federal courts to exercise independent judgment in enforcing those limits.

3. The judicial doctrine needed to uphold the individual mandate would remove any meaningful legal limit on congressional power.

4. Therefore, courts ought not to uphold the individual mandate.

The point of this syllogism is not meant to convince anyone, but to identify the main points of contention. If text and structure mean anything, Premise 1 seems obvious — Article 1, § 8 lists the specific powers of Congress, and the Tenth Amendment clarifies that Congress has only those powers. Which premise, then, do the defenders of the mandate dispute?

By necessity, the present litigation has focused on Premise 3. For that reason, the briefs and opinions have discussed in great detail the particular facets of the ACA and the mandate, the supposedly “unique” features of the health insurance market, and the distinction between activity and inactivity. The challenge for the defenders of the mandate has been to argue that (1) Congress may require all individuals to buy a particular product from a private actor; (2) Congress’s authority under the Commerce Clause extends to both activity and inactivity, because decisions not to buy a product are “economic decisions” nonetheless; but (3) such authority would not destroy meaningful limits on the Commerce Clause. The obvious problem is that if Congress can make you buy health insurance, why not an American-made car, or broccoli, or a gym membership? And if Congress can order you to buy or sell anything it desires (or more generally, order you to make any “economic decision”), how can we possibly be operating under a system of limited powers?

For my part, I see no principled way for courts to uphold the mandate and yet provide meaningful legal boundaries to Congress’s authority. Of course, complete analysis of this point is far beyond this discussion, and I’m sure some of the mandate’s defenders genuinely believe in judicial enforcement of enumerated powers. But my impression is that the real issue for most proponents of the mandate is Premise 2: Why should courts have the power to police limits on the Commerce Clause in the first place?

Over the past century, defenders of broad congressional authority have come up with many arguments for why deference to Congress on the scope of its powers is not the bogeyman conservatives and libertarians have made it out to be: Congress is an independent branch and deserves deference on interpretations of ambiguous constitutional provisions. Congress is democratic, and courts should not tell the people’s representatives that they are prevented from doing what the people want. Congress has sufficient political and structural checks on its actions without courts getting involved. And of course, courts can still stop Congress from violating individual rights — they just shouldn’t police the scope of Congress’s authority.

But the problem with these arguments, in particular the distinction between rights and structure, is that the point of federalism is not to somehow protect states for their own sake, but to not to protect individual liberty. Keep in mind that courts do not have some independent power to “strike down laws” — they only have the power to decide cases, which means the power to resolve individual disputes brought before them. But part of deciding cases requires deciding whether government actors have exceeded their legal authority, just as much as it involves asking whether the government has violated protected rights. Usually we take this premise for granted — when an agency acts beyond the bounds of its statute, or when the executive acts without statutory or constitutional authorization, the courts are expected to step in. So accepting, as I think we must, that the Constitution gives only limited power to Congress, why should the role of the courts here be any different?

It might be objected that courts are simply not good at enforcing limits on congressional authority. Maybe courts lack the institutional competence to adjudicate technical, economic issues, or maybe it is just too difficult to develop workable doctrine in this field. But even if those arguments are correct, they hardly resolve the issue. First, if we accept the basic premise that courts have a duty to render independent judgment where the political branches violate the Constitution, it seems insufficient to say that judges can nevertheless pick and choose when to perform that duty. If our government is to be one of laws, and not of men, then decisions to enforce the law cannot turn on individual judgments about when such enforcement is “proper.” Second, the idea that principled, consistent doctrine is hard to develop is hardly unique to the Commerce Clause. The First, Fourth, and Fourteenth Amendments are highly ambiguous and hardly admit of easily enforceable judicial doctrine, yet we accept judicial enforcement there without much debate.

Ultimately, we need to acknowledge that the litigation over the individual mandate is really part of a much broader discussion about what it means to have an independent judiciary in a government of limited powers. If the courts abandon their role in this field entirely, it will have little to do with healthcare — but it will be a sad day for the Constitution, for the rule of law, and for individual liberty. 

Comments