Friday, March 30, 2012

In Search of Limiting Principles

By Mike Dorf

Updated with CNN link.

I have a new piece on explaining my view that the health care litigation poses an unimportant legal question but an important political question.  Meanwhile, my latest Verdict column analyzes Tuesday's merits argument in the health care litigation through the lens of three sets of hypothetical questions, each of which poses the problem of how the lawyers would cabin the principles they respectively espouse to win the case.  As I note in the column, for the plaintiffs, there were two hard questions.

1) Justice Breyer's question: If the federal government cannot impose affirmative mandates, does that mean that, e.g., the federal government could not require inoculation against a deadly communicable disease?  Aren't there other vital things the federal government needs to mandate?  E.g., jury duty, the draft.  As I read the plaintiffs' answers, they would like to limit their no-mandate rule to the Commerce Clause on the textual ground that it authorizes regulation of existing commerce.  The government, of course, says that this very case involves existing commerce (more on that below in point three), but even if one disagrees, the plaintiffs' response still founders on Justice Breyer's question, in which the inoculation mandate is predicated on the interstate commercial effect of non-treatment of the disease.

To be sure, during the oral argument, Justice Breyer may have undermined the effectiveness of his hypo by appearing to agree with Michael Carvin (for the NFIB) that the argument for federal power in the inoculation case is of a piece with the argument for federal power in United States v. Morrison, where Breyer dissented from the Court's holding that Congress lacked the power to enact the civil remedy provision of the Violence Against Women Act.  That made it look like the Court had already effectively rejected the notion that Congress could impose an inoculation mandate to combat a deadly disease in Morrison and that Justice Breyer was simply trying to re-open the issue.

But that appearance is false.  In Morrison the Court held that gender-motivated violence is not economic activity and thus not regulable under the Commerce Clause, given that regulation of gender-motivated violence is in no way connected to some larger regulatory scheme.  But that objection does not apply in the inoculation hypo.  Consider a slight variation: Suppose that instead of requiring inoculation, the federal government sought to quarantine already-infected people in their homes on the ground that leaving their homes would spread the disease.  Wouldn't that be a valid exercise of the Commerce Clause on the ground that spreading the disease is economic activity (albeit harmful economic activity in the way that the economic activity of growing marijuana is harmful in the Raich case)?  And if the federal government can quarantine on this ground, then it can inoculate on this ground--unless the Commerce Clause distinguishes between mandatory quarantines and mandatory inoculations.  It might so distinguish if there is a prohibition on the regulation of inactivity, but if so, that's got nothing to do with Morrison.

2) The plaintiffs also faced a very hard question from Justice Sotomayor about the tax power.  As I explain in the column, I thought that Paul Clement's answer was just wrong, while Mr. Carvin's answer was necessarily formalistic.  My sense from the oral argument was that there aren't five votes to sustain the minimum coverage provision as a tax, but that the reasons for that position aren't at all clear.  I think the best that can be said against sustaining it as a tax is that some people who are subject to the mandate are not subject to the penalty if they don't pay it.  But to mind that means that at most the Court ought to strike down the mandate (if it cannot be sustained under the Commerce Clause) as applied to the people subject to it but not subject to the penalty.  And because most such people will be eligible for other forms of health insurance (like Medicaid), striking it down as applied in this way would not do much violence to the rest of the Act.

3) That brings me to the hard question that was posed for Solicitor General Verrilli: What is the limiting principle?  Justice Alito asked him this question point blank.  The SG offered two limiting principles. Here I will quote what he said in full:
[a] When Congress is regulating -- is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme.
 [b] With respect to the -- with respect to the -- considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the -- the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.
A number of people have been criticizing the SG for his performance and I don't mean simply to pile on, but I'm afraid that I agree with the criticism.  I have no doubt that SG Verrilli worked extraordinarily hard to prepare for this case, but his answer to Justice Alito was poor.   Proposition (a) seems to be saying that Congress can regulate something--activity? activity or inactivity?  economic stuff?--when doing so is necessary to counteract a risk created by its regulation of something else.  Okay, perhaps, but that's not a limiting principle.  A limiting principle should include a limit.  It should not only say what Congress can regulate but also what it cannot regulate.

Proposition (b) is a very inartful way of saying that the limiting principle is defined by the facts of this case.  But surely the SG does not mean that.  Is he saying this case is unique?  Why?  Simply restating what the law does is not the same thing as explaining why other laws that do other things would not be valid.

SG Verrilli should have rehearsed a one-sentence answer to the limiting-principle question and should have had some simple examples of things Congress cannot do.

How would I have answered Justice Alito's question?  As a substantive matter, I would not have conceded that there is any general prohibition on the regulation of inactivity, although I would have made the government's argument as an alternative point.  I would have said more or less the following (which I would have rehearsed and had on a piece of paper at the podium):
This Court's cases already establish a limiting principle.  If the regulation does not concern the channels or instrumentalities of interstate commerce, then Congress may enact laws regulating either "economic" activities--as in Raich but not Lopez or Morrison--and Congress may also enact laws that do not regulate economic activity where doing so is part of a comprehensive scheme that regulates interstate commerce--as Justice Scalia's concurrence understood the law at issue in Raich and as Justice Alito's concurrence understood the law at issue in Comstock. Those are the limiting principles this Court has already established, and they're fully operative here.
Now, let's apply the test, including its limiting principles.  The mandate is valid under either prong.  Congress may regulate the timing and manner of the purchase of health services, which is a kind of economic activity, or, in the alternative, the mandate is necessary and proper to the comprehensive scheme Congress enacted governing health insurance. 
Even accepting the plaintiffs' characterization of the minimum coverage provision as regulating inactivity, the prior limits remain.  The Gun Free School Zones Act (invalidated in Lopez) and the civil remedy provision of the Violence Against Women Act (invalidated in Morrison), are still beyond the scope of the Commerce power.  Acknowledging a "mandate power" in Congress would not enable Congress to circumvent those limits.  Thus, sustaining the mandate would in no way give to Congress a police power.
Finally, if the Court is worried that sustaining the mandate would license Congress to mandate economic activity as a general matter, the Court could easily announce a rule that Congress may not require economic activity where its only plausible rationale for doing so is simply to push people not fairly characterized as already engaged in current market activity, or likely to be engaged in future market activity, into such activity.  Under such a principle, if Congress simply wants to encourage market activity, it must use prohibitions of the Wickard v. Filburn sort rather than affirmative mandates.  We think this further limiting principle is unnecessary because it's implicit in what the Court has already said in Lopez and Morrison, but we have no objection to its adoption.
I'm not saying that's a perfect answer, but I do think that it's a substantially better answer than the SG actually gave, and I only took about 15 minutes to come up with it.  Surely the government should have prepared better for what everyone knew was going to be the key sticking point of the case.


egarber said...

On the last test you cite, I've been going back and forth with friends. And I think this is the best way I can put it (from an email exchange):

"To be clear, I agree with you, in that congress can't compel a person to make a purchase because of vague notions about functioning markets. That's why a limiting factor is needed here.

The answer is that not all INaction is created equally. My attenuation model addresses that. The key about the healthcare cost shift is that your inaction is the decision to have somebody else pay for *your* care -- i.e., you're personally in the market for the product by default.

Not so with hybrid cars, etc. In those cases, the decision relates to whether you want to enter the market in the first place. A decision to stay out simply means you'll never own a hybrid.

I'm not an expert on the legal terminology, but the court can easily fashion a bright line for that test. My sense is that Kennedy wants something like that. But who knows."

Blogger said...

I still think the limiting principle is a bit hard to tease out of that first long sentence. As you suggest, a limiting principle should limit -- ideally by pointing to what lies beyond the limit. Your rule states that the commerce power reaches as far as economic activity and comprehensive schemes regulating interstate commerce. But what's beyond Congress's power? Even these tests could be infinitely elastic. What's economic and what's comprehensive? Yes, it's true that a limiting principle is better expressed as a standard than a bright-line rule, but it would be helpful to state what's beyond the commerce power aside from citing Lopez and Morrison. It is a hard question, and one that probably requires more than 15 minutes.

PG said...

" Wouldn't that be a valid exercise of the Commerce Clause on the ground that spreading the disease is economic activity (albeit harmful economic activity in the way that the economic activity of growing marijuana is harmful in the Raich case)? "

I don't think so. Remember that Biden, trying to learn from Lopez, specifically included findings on the effect of violence against women has on interstate commerce. The Court still said no go.

Growing marijuana is an economic activity because there is an interstate market for marijuana, albeit mostly an illegal market. If Raich had accidentally left some of her marijuana on the bus one day, it likely would have been the subject of an economic transaction within an hour.

To my knowledge, there's no interstate market, legal or illegal, in spreading disease via human carriers. Even terrorists don't seem to have gotten into that type of suicide biological warfare, much less paid interstate assassins.

AF said...

Professor Dorf,

Your initial answer would trigger the inevitable question: "Purchasing broccoli is an economic activity. Can Congress pass a broccoli mandate?" You would then have to respond, in essence: "Under the Commerce Clause, yes, but a broccoli mandate would violate Due Process and if you disagree with me on that, you can go to my back-up argument." I think the SG, reasonably, saw no upside in saying that a broccoli mandate would be within Congress' Commerce Clause power, so he went straight to a version of your back-up argument.

To me, the problem is not that his answers were bad, it's just that for whatever reason, he wasn't prepared to make them as crisply as he should have.

ben said...

your limiting principles focus too much on what congress can do. as a justice, i want to know what congress CANT do before i give them this power. i'm not giving congress carte blanche to make people buy things. there needs to be a very clear limit.

i basically agree with AF in the sense that the broccoli hypo controls. as a justice, i want to know if congress can mandate broccoli purchases and if they cant, why cant they? after all, everyone is in the market for food. i'd be interested in how your limiting principles would address that question.

Crispian said...

Hopefully my response to your Verdict column posts soon. I won't reiterate those points here. What I continue to not understand is why the liberty aspect so completely fails to register in your analysis.

You go so far on CNN to declare Congress "nearly omnipotent" under the Constitution. That is a mind-boggling view at odds with a holistic reading of the document, as well as the plain text of various clauses. Ultimately, Congress's power has been limited in significant ways.

My fundamental disagreement is that this is not about mere formalism and the notion that expansive powers beget more expansive powers is a corruption of the Constitution.

Michael C. Dorf said...

I'll eventually have a follow-up post -- or possibly a Verdict column -- explaining why the various attacks on the various limiting principles that have been offered are misguided. Here I just want to very briefly respond to Crispian's comment:

1) My statement that Congress is virtually omnipotent was a descriptive report of the doctrine, not a normative claim. And it's clearly right as description. That's why Justice Thomas has consistently dissented from even the post-Lopez Commerce Clause jurisprudence: Because he recognizes that even the other conservatives would permit Congress to do nearly anything it wants.

2) It's not clear whether Crispian agrees, but I think I read him to say that just because the Court has permitted Congress to go 98% of the way, that's not a reason to let it go the remaining 2%. But that's not what I said. I said that the mandate would very clearly already be within the 98% if framed to do exactly the same thing via the taxing power, so any new "inactivity" limit the Court imposes under the Commerce Clause would be formalistic.

3) Perhaps I was not precise enough. When I said Congress was virtually omnipotent I meant virtually omnipotent "so far as limits imposed by the enumerated powers are concerned." There are also individual rights limits. Thus, a mandate to EAT broccoli would run afoul of substantive due process. Likewise, a law forbidding bumper stickers critical of Congress on cars that move in interstate commerce would fall within the Commerce Clause but would violate the First Amendment. Federalism limits exist in part to preserve liberty, but until now we have understood that they do so indirectly.

The case law might have developed along the lines that Crispian suggested, but to get it there now would require rolling back at least the New Deal cases and possibly the rulings of the Marshall Court.

ben said...

so the federal government can make you buy broccoli but they cant make you eat it.

Michael C. Dorf said...

ben: Yes, of course. The fed'l govt does that all the time. You pay taxes to the govt, which subsidizes stuff like corn, solar panels, etc., i.e., buys stuff for you (and everyone else), but that doesn't enable the govt to physically invade your body by making you eat any of it. So the difference is simply formalism. Charles Fried made this point quite clearly.

AF said...

Professor Dorf,

To be clear, I agree with you on the merits. Nevertheless, I'm not sure it would have been a good answer at oral argument. It was pretty clear that Kennedy thought a broccoli mandate would be beyond the Commerce power.

Crispian said...

Thank you for your response.

1) It does seem clear that 8 Justices permit federal regulation of healthcare under the Taxing or Commerce Clauses. We can also say that the Justices permit federal regulation of firearms under the Commerce Clause. But the Court has not allowed the federal government to regulate these fields anyway it wants. (Lopez; Prof. Vikram Amar's Verdict column on Coleman).

2) That is an accurate description of my view. Though the goal may be the same (increasing insurance coverage), there is a qualitative difference between relying on the Commerce Clause rather than taxing power.

To illustrate: The federal government has gone far in compelling states to enact federal policy, even after the Court ruled commandeering statutes unconstitutional. However, to say the difference is mere formalism ignores how the law would have developed if the federal government could commandeer states.

A prohibition on 'comandeering' people provides similar structural limitations on federal power.

To support the ACA, proponents talk about the 'reality' of the market. Similarly, there is value in the reality of legislating under the Constitution's limitations.

I'm not arguing the Justices should consider imposing political difficulty as a means of limiting federal power - I'm agreeing that political difficulty is the primary limitation federal power. This consequence flows naturally from what may appear to be formalistic distinctions.

If we analyze the constitutionality of a statute by reference to a clause which could have been applicable, rather than an actually applicable clause, we sidestep constitutional as well as important political limitations on congressional power.

Even conceding that there is only a formalistic distinction (ie the financial effect on individuals would be essentially the same), the implications are significant enough to justify interpreting laws only under the clauses which ostensibly authorize them.

3) Congress could have compelled Filburn (and everyone else) to buy wheat? [As noted in my reply on Verdict, I am unclear on whether you think this is possible even in the absence of a comprehensive regulatory scheme]

That Congress can purchase or subsidize something does not mean it can compel us to do the same. Thus it can use tax money for purposes which violate any number of American's religious beliefs, but generally cannot compel individual Americans to do the same.

Congress can subsidize "pink slime," the corn syrup industry, cage-raised poultry, and any number of controversial food items - but to be able to compel Americans to purchase them (but not eat them) is to abrogate the inherent expressive power of not purchasing something. That appears to be a major extension of authority based on application of an inappropriate constitutional clause.

I am curious if there are examples where the Court has upheld a law on the basis of it being the functional equivalent of a law that could have been supported by another clause, if appropriately framed.

PG said...

But even the government's buying stuff for you doesn't necessitate that you HAVE it. Eg, payroll taxes go to Social Security and Medicare, for which legally present persons who have paid into the system are ELIGIBLE at a certain age. But that doesn't mean they have to accept it. People have to choose to enroll in Medicare to be covered by it, and there's no penalty imposed by law for refusing to do so and lacking insurance -- now. In 2014, there will be.

Joe said...

"would permit Congress to do nearly anything it wants"

"Nearly everything" other than something that violates explicit commands, implicit rights (no explicit right to not eat broccoli), something purely local and/or not really "commercial" ala Lopez or Morrison, commandeering state officials ala Printz, commandeering state legislatures ala NY v. U.S. ...

Other than that, what has the Roman Empire done for the Jews (Life of Brian).

Cristiero Rola said...

My declaration that The legislature is almost all-powerful was a illustrative review of the doctrine, not a normative declare. And it's clearly right as information. That's why Rights Johnson has continually dissented from even the post-Lopez Industry Stipulation jurisprudence: Because he identifies that even the other conservatives would allow The legislature to do nearly anything it wants.Windows 7 professional product Key
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