A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”
Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.
Solicitor General Donald Verrilli was criticized by Obamacare supporters for failing, during his oral argument, to articulate a “limiting principle” on congressional power under the Commerce Clause — because he must have known the justices would ask for one. But Elena Kagan couldn’t answer the question two years ago; prominent Harvard and Georgetown professors couldn’t answer it a year ago; last year, the government conceded the lack of a limiting principle. The problem is a little deeper than Verrilli’s presentation.
The point was demonstrated again in the colloquy Justice Breyer had with Michael A. Carvin. Carvin noted that if Congress exceeded its power under the Commerce Clause, the law “doesn’t somehow become redeemed because it has beneficial policy effects in the health care market.” That would mean Congress could compel everyone to buy anything if Congress thought it beneficial, since “every compelled purchase promotes commerce.” Justice Kagan started to ask a question, but Breyer initiated a long colloquy with Carvin (Transcript, pp. 85-90), which ended as follows:
JUSTICE BREYER: … then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?
MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers –
JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question. [Emphasis added].
JUSTICE KAGAN: I’ve forgotten my question. (Laughter).
MR. CARVIN: I — I was facing the same dilemma, Justice Kagan.