The Affordable Care Act, Part II: what's broccoli got to do with it?

How strong was the commerce clause argument in the Affordable Care Act case (National Federation of Independent Business v. Sebelius)?

I have to say that I sympathize with the conservative justices’ concern that the commerce clause shouldn’t become the basis for congressional power over everything. Of course, it wouldn’t be – that is, no matter what Congress has power to regulate, it can’t regulate anything in violation of the Bill of Rights. Moreover, just at the moment Congress can hardly pass legislation at all, on any subject, and so it’s a bit difficult to say we’re all in peril of congressional overreaching right now. In fact, it’s difficult to see any Congress ever legislating in true and utter disregard of the states, from which every member of Congress is elected. Nevertheless, I agree with the basic idea that liberty is safer if no one unit of government is too powerful. Moreover, perhaps in part as a result of having studied South African law from the days before that country’s Parliament was subject to meaningful constitutional limits, I’m not entirely comfortable with trusting that Congress just won’t choose to exercise power once we’ve decided that it could if it wanted to.  

So I think the idea that there should be some limits on the commerce power has appeal. But what’s startling about this case is how implausible it is as the occasion for finding such limits. Health care is a huge part of the United States economy, the stuff of interstate commerce every minute of the day. Moreover, it seems quite clear that if the individual mandate had not been upheld, the elaborate scheme of the Act would have been greatly undercut. The various provisions of the Act designed to make health insurance available at reasonable prices to people with preexisting health problems – an essential feature of the law – would likely have been unsustainable without the premiums to be paid by healthy young people purchasing insurance because of the individual mandate. In fact, the four dissenters (Scalia, Kennedy, Thomas and Alito) were convinced that without the individual mandate and the expansion of Medicaid, the whole system would be so compromised that they would have thrown out the entire statute, every single section. So not only is health care clearly part of interstate commerce, but the individual mandate – the portion of the statute evaluated under the commerce clause – was necessary to the overall regulation of commerce achieved by the law, and so should have been seen as “necessary and proper” to Congress’ exercise of its power over interstate commerce.

Except for one thing. That was that, as the conservative justices (including Roberts) saw the matter, what Congress was regulating with the individual mandate was not activity but inactivity. There was no commerce to regulate, these justices believed, until the statute forced everyone into the insurance market by mandating that they get insurance. The conservative justices insisted that the power to regulate was not the power to create commerce but the power to manage what already existed, and that Congress had never previously been allowed to regulate the failure to engage in interstate commerce.

This argument strikes me as particularly weak. It may well be that Congress has never regulated commercial non-activity, and correspondingly that no precedent ever said that Congress could do that. It’s probably also true that no precedent ever said that Congress could not do it, and that the reason Congress didn’t regulate inactivity was that doing so wasn’t so deeply integral to a larger regulatory effort as it was in this case.

Yet one might respond that “inactivity” is simply, definitionally, beyond the range of both Congress’ commerce power and its adjunct, the necessary and proper clause. One might, but why? As Justice Ginsburg says in her separate opinion, dissenting on this issue, similar efforts were made in the 1930s, notably to limit Congress’ power to regulating activities with “direct” effects on interstate commerce, while barring Congress from dealing with activities whose effects, however large, were merely “indirect.” That idea has long been abandoned, for at least three good reasons, each applicable here too.

First, the words “direct” and “indirect” don’t appear in the commerce clause or the necessary and proper clause. However conservative the justices who employed these terms, they are judicial interjections rather than part of the constitutional text. “Activity” and “inactivity” are similarly absent from the constitutional text.

Second, and more or less by design, the concepts of “direct” and “indirect,” like those of “activity” and “inactivity,” have nothing to do with the actual impact of what people are doing (or not doing), either its impact on the economy or – the real point – its effects on their other citizens and residents of the United States. It isn’t a virtue to be deliberately disconnected from sensitivity to real impacts.

Third, these words – “direct” and “indirect,” “activity” and “inactivity” – are pretty deeply obscure. Justice Ginsburg argues at length that people who don’t buy health insurance are not inactive in the market for health care; they will, on the contrary, very likely consume health care within the foreseeable future, say 5 years. They may need that health care in a moment, since no one knows when injury or illness will strike without warning. So they are, as Ginsburg suggests, actually “active” in the market, via the route of “self-insurance.” For some, moreover, self-insurance will fail; they will wind up unable to pay for their health care when they actually need it, and these health care consumers are every day engaged in a process of free riding on the rest of us. Others – those whose premiums are so needed in order to pay for the costs of making insurance widely available to people who can’t currently purchase it – are not free riding but rather are resisting paying part of society’s bill; but they too may be seen as actively refusing to purchase, rather than simply being inactive. When is a “refusal to act” (or, to use another phrase, a “failure to act”) actually an “activity”? The constitution doesn’t say. Chief Justice Roberts says that someone who is sitting around and doing nothing is not in the “rest” market – but we’re a long ways from that case in talking about how people deal with the inevitability that they will need health care.

All of this makes me feel that it was simply a mistake to try to draw a line between what the commerce clause reaches and what it doesn’t that is based on the supposed distinction between “activity” and “inactivity.” But what about the broccoli argument? It is, after all, true that broccoli purchases, aggregated across all the consumers in the United States, have a substantial effect on interstate commerce, and so – as the conservatives said – the kind of logic I’m endorsing would suggest that the federal government could order us all to buy broccoli.

I don’t think the government should be able to make us buy broccoli. (Should it be able to prevent us from buying huge containers of sugared soft drinks? That’s actually an easier question under the commerce clause – buying soft drinks is an activity, by any lights, and so regulating that activity shouldn’t raise any of the questions that mandating insurance did.) But back to broccoli – I think that heading off this possible extension of federal power is a matter that deserves attention, and that finding a coherent rule that does this may not be easy. But broccoli is not this case, as lawyers say. We are a long ways from broccoli in thinking about how to finance health care for the American people, an issue of almost overwhelming commercial and economic import.

So it seems to me, in the end, that the conservatives picked the wrong case to draw a commerce clause limit in. Limits may be needed, but they should have been drawn so that this statute fell within them rather than beyond their bounds. And it would have been good to find limits that avoided the incoherence of the “activity”/”inactivity” line that is now apparently part of our constitutional law.