Critics contend that Judge Hudson has unduly restricted Congress’s authority to regulate interstate commerce, the principal basis on which the government defends the law. Some also claim that he ignored the “necessary and proper” clause of the Constitution, which allows Congress leeway to choose how to put in place national economic programs. Yet a closer reading shows that Judge Hudson’s analysis could prove irresistible to the Supreme Court and that there is a reasonable chance it will agree that the insurance mandate is invalid.
For the last century the Supreme Court has struggled to define the limits of Congress’s interstate-commerce power. In the early decades of the 20th century, the court experimented with a variety of distinctions: Congress could regulate trade but not the manufacturing process (in a child-labor case); Congress could regulate anything that directly affected interstate commerce but not where the effect was indirect (in a labor dispute involving coal miners); Congress could regulate goods in the stream of commerce but not before they entered or after they left that stream (in a ruling on chicken farming).
These distinctions, however, proved unworkable in a time of industrial growth and expanding national markets. And in the 1930s, confronted with the surge of governmental power during the New Deal, the court abandoned them all.
Beginning in the mid-1990s, however, the court took up the project anew. In invalidating a federal gun possession law and the provision of the Violence Against Women Act that allowed victims to sue their attackers, Chief Justice William Rehnquist and his colleagues held that while Congress could regulate local economic behavior because of its national economic effects, Congress could not on the same theory regulate non-economic behavior like possessing a gun or committing an act of violence.
When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must be, on this federal power?
Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate “activity,” as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress’s power under the Constitution’s interstate commerce clause have involved Congress regulating some kind of activity that is already occurring.
Indeed, the court has never confronted a federal statute that forces people to engage in some action like this. The conservative justices in particular will no doubt wonder what else Congress can make Americans do if it can make us buy health insurance. Can Congress tell us to join a gym because fit people have fewer chronic diseases? Can Congress direct us to purchase a new Chrysler to help Detroit get back on its feet?
In addition, parsing the distinction between activity and inactivity provides a way for the justices to strike down the individual mandate without having to overturn any precedent. As shown by its ruling this year that corporations have a First Amendment right to pay for political ads, the Roberts court is masterly at generating new rules while saying it is faithfully following established law. Indeed, there is a hint that at least one member of the court already sees things in the same way as Judge Hudson. When the court held in 2005 that the interstate commerce clause permitted Congress to outlaw the cultivation and possession of marijuana for personal medical use, Justice Antonin Scalia wrote a concurring opinion that is a mini-treatise explaining why the relevant precedents commanded this result. In describing what Congress could regulate, Justice Scalia used the words “activity” and “activities” 42 times.
Judge Hudson’s critics say that a distinction between action and inaction is unworkable. After all, individuals who do not purchase health insurance engage in activity when they go to an emergency room for care. Yet a Supreme Court that for more than a century has struggled to define the limits of federal commerce power might, like Judge Hudson, refuse to find actions beyond the insurance market itself pertinent to an analysis of the law.
Judge Hudson’s distinction also has allure because United States law in other ways already treats actions differently from inaction. Criminal law punishes things people do, not things they do not do. Tort law makes us liable for our actions that cause injury; outside of special relationships like that between a parent and a child, there is no duty to act. To drive a car, you must first purchase insurance, but you can choose to forgo auto insurance and use public transport instead.
While nobody knows for sure what the Supreme Court will do in any particular case, there is now a serious question as to whether the individual mandate will ultimately survive. Judge Hudson has offered the justices a ready-made limit on Congressional power, a limit that makes sense of past cases, is steeped in the law’s traditions and allows the court to complete the task it began a century ago.