Why ObamaCare's Individual Mandate is Unconstitutional (Jones v. United States, 529 U.S. 848)

There seems to be a wide diversity of opinions as to whether the individual Mandate in the recently enacted health care legislation is constitutional or not. I have seen the usual Commerce Clause precedents principally the 1995 Lopez case(which invalidated a portion of the Gun Free Schools Zone Act) and Morrison, in 2000 (which struck down portions of the Violence Against Women Act) cited for the proposition that it is not constitutional. On the other hand, I have seen Commerce clause precedents such as the 2005 case of Gonzales v. Raich (which held that the global, nationwide ban on marijuana was constitutional even as to marijuana grown for personal, medical use) and the 1942 case of Wickard v. Filburn (which sustained on Commerce Clause grounds a New Deal statute limiting the amount of wheat a farmer could grow even for his own personal use).

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

Let me start with my own view, which is that the Commerce Clause has never been, and can never licitly be, construed to permit Congress to REQUIRE activity, economic or otherwise. It may regulate Interstate commerce which is already underway. That is plain from the text of the the interstate commerce clause. The jurisprudence cited above has not, however, been a model of clarity, and none of the cases cited above is closely analogous to the individual mandate in ObamaCare. Morrison and Lopez, which struck down (portions of) the Violence Against Women Act and the Gun Free School Zone Act are qualitatively different factually than the health care mandate. Gonzales and Wickard involved the ACTIVE cultivation of fungible crops (which, despite the plaintiff's protests that they were for personal consumption) could easily have been introduced into interstate commerce, and virtually everyone would concede that interstate agricultural commerce is within the reach of Congress' Commerce power. Again, however, although Gonzales and Wickard appear more analogous at first blush, unlike the Health care mandate, Congress was regulating ACTIVITY in an area (AGRICULTURE) that has traditionally been treated since the time of the framers as subject to Congressional regulation, it being impossible in these two contexts to distinguish between private and public crops.

III. JONES v. UNITED STATES--REGULATION OF COMMERCIAL ENTITIES VERSUS PURELY PRIVATE ONES

This brings me to a much more analogous, and at least from a factual standpoint, persuasive case, which has not(to my knowledge) been cited and which supports the unconstitutionality of the individual mandate here. Moreover, unlike the recent decisions (Lopez, Morrison and Gonzales), which were all 5-4 decisions, this case was a 9-0 decision, authored by Justice Ginsburg in 2000. It is Jones v. United States, 529 U.S. 848 (2000), linked in the first comment below this post.

[Let me begin with one important qualifier. The Court in Jones found that the statute as written did not invoke the full scope of Congress' commerce clause power, which Obamamcare clearly attempts to do, so it was decided on statutory rather than constitutional grounds. I think an analysis of the facts makes this distinction much less significant.]

In 1998, Dewey Jones, of Detroit, tossed a Molotov cocktail into the home of his cousin, James Walker, Jr., in Fort Wayne, Indiana. Walker's home was severely damaged. Subsequently, Jones was convicted in U.S. District Court of violating 18 U.S.C. section 844(i), which makes it a federal crime to "maliciously damage or destroy, ...by means of fire or an explosive, any building... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." The Court of Appeals affirmed Jones's conviction. Before both courts, Jones unsuccessfully argued that section 844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under the Commerce Clause of the Constitution.

No. In a unanimous opinion, delivered by Justice Ruth Bader Ginsburg, the Court held that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity, such that arson of such a dwelling is not subject to federal prosecution under section 844(i). Justice Ruth Bader Ginsburg wrote for the Court that "[w]ere we to adopt the Government's expansive interpretation of section 844(i), hardly a building in the land would fall outside the federal statute's domain."

The Court reversed the conviction, focusing on the phrase in 844(i) "used in", and did not squarely reach the issue whether, had Congress not used the qualifying phrase "used in" but had merely criminalized the destruction of "any building...affecting interstate commerce" words that, when unqualified, signal Congress’ intent to invoke its full authority under the Commerce Clause, the same result would have obtained.

The interesting part of the opinion from the standpoint of the individual mandate is twofold: a) the parts of the opinion that focuses repeatedly on "activity"(as opposed to inactivity) affecting interstate commerce; and b)the broad sweep that such a mandate would have if it applied to every person (as the Government in Jones sought to apply it to every private residence) in the United States. The Court observed:

"Were we to adopt the Government’s expansive interpretation of §844(i), hardly a building in the land would fall outside the federal statute’s domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace of interstate commerce."

The Court continued to use the term "used in" throughout the opinion to avoid, as it said, a full blown Lopez-style constitutional analysis. But it is very difficult to see how the absence of the phrase "used in" would have altered the result in Jones. Its presence merely enabled the Court to decide the case on statutory, rather than constitutional, grounds.

Congress in the PPACA(ObamaCare) makes the following findings, with regard to the individual mandate:

The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph

(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following: (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

"An applicable individual shall for each month beginning after 2013 ensure that the individual,

and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."

Congress is authorized to regulate commerce. Commerce is an activity, defined as "the buying and selling of goods, especially on a large scale, as between cities or nations." In ObamaCare, Congress makes a finding that the mandate to purchase private insurance "regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased." In other words, Congress redefines commerce and activity in such a way that the behavior regulated (or rather required) is neither commerce nor activity. It is difficult to see how the Court can credibly permit Congress to engage in such a stark redefinition of terms which are universally understood to mean something entirely different. It is even more difficult to believe that they would permit such a redefinition of terms in the Constitution as a vehicle for Congress to do what it has never done before, that is: to require individuals to engage in private commercial transactions, of Congress' choosing, with other individuals.

The important lesson in Jones is the distinction that the Court drew between commercial buildings and private residences. Private residences simply lack the connection to interstate commerce that would trigger Congress' power to regulate activity with regard to them, and this is clear from the Court's ruling, even though the holding is on narrower grounds.

Finally, it is impossible to escape the analogy between a private residence and a private individual. Like private residences, private individuals per se lack the connection to interstate commerce that would trigger Congress' power to regulate them. If the Court was so troubled by the extension of Congress' Commerce Clause reach to ACTIVITY as egregious as a bombing involving a private residence, it should be a fortiori even more troubled by the extension of that same regulatory authority to the INACTIVITY (i.e.-the desire to be left alone) of private individuals. Unlike private residences, with regard to which the court labored so hard in Jones, private individuals (and the states) are clothed with all rights under the Ninth Amendment (and Tenth) Amendments not specifically granted to the federal government. Only a complete redefinition of the terms "commerce" and "activity", a redefinition to which the unanimous court in Jones would seem hostile, would save the individual mandate from the ash heap of constitutional history.

The definition of “commodity” notwithstanding, Congress had previously stipulated that the scope of any health insurance product is wholly intrastate. The present bill is an attempt by Congress to regulate something that doesn’t exist; all intrastate commerce must be uniform in an interstate manner.

How is that any different than Congress regulating State highway and private bridge tolls? Or that all cable vendors must offer specified programming and fees? Quite frankly, where, when and for what purpose you go from place A to B would also fall into said purvue.

Your well reasoned reply is much appreciated. The only thing that I can outright rebut with respect to your response pertains to what you said about "common sense". The only thing I know about common sense is that it is commonly "uncommon".

That being said, I've come to conclusions akin to yours after review of Frederick Bastiat's writings. I've alluded to this fact several times on this board. My lament is borne out by the arguments made on the Michigan forum against the health care bill on the basis of just HOW MUCH Medicare and / or Medicaide will be cut.

If you've ever read Bastiat's The Law, you'll realize just how far PASSED the point of no return this country is.

My advice to Freepers of ALL stripes, DO NOT READ BASTIAT. Do not read what is will make you sad, and dejected and instill a sense of despair and hopelessness. It is far better to read all the anti-McCainite and Palinite threads; you'll feel much MUCH better after reading those threads.

Quite frankly: I believe its hopeless; this country will NEVER get out of the clutch the Devil holds it in. Who knows, maybe I'm wrong and Free Republic won't spill a large amount of blood debating the suitability of John McCain as a candidate for Senator or Sarah Palin concerning anything whatsoever.

Its alright, Florida got what it deserved after refusing to acquiesce to a candidate of such numbskullery as Kathleen Harris. As nearest I can tell Florida is still there, and Sen. Nelson is doing well for them. In my sorry state, Michigan, there was an election for governor some time ago. The man who ran the "Dick DeVoss - go to my website to see what I'm all about" againt the incumbant Jenny the Grandstander - Two Penny Jenny - lost.

FWIW, even so I have a great deal of respect for your namesake, I got one word for you in that regard (nicely that is): George H. Thomas (Major General U.S.A.).

“I would love to hear Bork’s take on it.”

I recall Mark Scott (RIP Detroit radio talker extraordinaire) commenting once (many years ago) that Bork “pooh poohed” the 10th amendment. I found this...

http://www.cato.org/pub_display.php?pub_id=9777

Thanks much for the ping, raygun. Replying to comments 2 & 3. (continuing on now).

OUTSTANDING post, Brices Crossroads! Historical/educational. Thanks.

After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair.

A bit unnerving, coming from one of the great posters on this forum. Nonetheless, thanks for another outstanding post, nathanbedford.

ping to a recent unnerving flashback from another respected FReeper...

After 45 years of working with that document I am now certain that the essence of the Constitution is under attack.

Holy cow! I completely missed your reply from last night!!! Which distresses me to no end since I was keenly interested in your response. It ain't easy gettin old. ;^)

The short answer is yes. The transit of widgets from state to state can be regulated. Ditto the other hypos.

However, does the question still remain, that if in fact I'm engaging in interstate commerce, can I be regulated? Like maybe I'm restricted to purchasing no more than say, one widget per month? Might I be required to register my newly acquired widgets so as to facilitate compliance? Is this the basis for firearms registration???

Two things re the balance of your reply, particularly the perception(?) the interstate commerce clause is broad; I would contend overly broad:

No more, no less. Thoughts?

Quite frankly, where, when and for what purpose you go from place A to B would also fall into said purvue.

Speaking of going, how're those new low-flow turlets working out for us? Now there's another regulation promulgated by the federales based at best on questionable science. Ostensibly to preserve a "renewable" resource done under the "authority" of interstate commerce. The list of course would run into the ~~thousands~~ millions of products but I'm preaching to the choir.

Fact is, the various clauses within, and without in some cases, the Constitution are having to be massaged to the point of becoming unrecognizable. To this layman, 0bamacare is unconstitutional on its face. Too bad I'm not sitting on the high court.

Thanks for you characteristically incisive reply. I am indebted to you for that dose of cynicism, which actually amounts to realism in any discussion that touches on pettifoggery.

I continue to believe, however, based on its recent willingness to find some limits on the Commerce Clause, that the Court will find the Obamacare mandate a bridge too far. It requires a completely novel (re)definition of both the term commerce and regulate, which would sweep away any limitation at all on the Government’s power to tell its citizens what to do and when to do it. Every major commerce clause case in history has dealt with a challenge to the Congress’ PROHIBITION of conduct, based upon its authority under the Commerce clause. For the first time in history, the challenge involves the government’s MANDAMUS of conduct based upon its authority under the commerce clause.

Because such a mandamus, so to speak, runs headlong into the character of the action being mandated (commerce) and requires a redefinition of commercial activity to include commercial INactivity (as well as a redefinition of the term “regulate” to include “require”).

Because the Commerce Clause has, to my admittedly limited knowledge, always been limited to permitting commercial activity or prohibiting the same, I think it would be a quantum leap to allow it, for the first time, to mandate activity. This conundrum (for the statists) is exacerbated by the fact that, to arrogate such power to itself requires a complete transmogrification of the Commerce Clause: the complete redefinition of, not one but two words, in the six word commerce clause, “regulate” and “commerce”.

I think this is too much constitutional “craftsmanship” even for the most activist of Courts to undertake in a single case. (Even the Warren Court laid the foundation for the Roe decision with Griswold and its progeny discovering the “right to privacy”, before it was applied to strike down 45 state abortion prohibitions). I do not think that the Rehnquist/Roberts Court has shown itself to disposed to such naked power grabs and it has been willing to strike down high profile Congressional enactments (such a McCain Feingold and the Violence against Women Act)when they run afoul of the limits of the Constitution.

“if in fact I’m engaging in interstate commerce, can I be regulated?”

Very good point. The Constitution permits Congress to regulate commerce between the several states. I think your interpretation is more faithful to the framers’ intent than is the current one. The current state of the law, which we must unfortunately confront, is that if you engage in an activity that substantially affect interstate commerce, you are within the reach of Congress’ regulatory power.

BUT, if you are not engaging in any activity whatsoever, then how can Congress justify a regulation of your behavior based upon the fiction that your inertia amounts to commerce? It cannot, unless it defines commerce and regulation in new and unprecedented ways.

If the statist concedes my point and admits that an individual who is inert (i.e.-declining to engage in commerce) is beyond the reach of the commerce power of Congress, what is their fallback approach? (They always have one) Would it be to argue that as soon as the inert individual seeks medical care, he has engaged in activity that substantially affects interstate commerce and is thus subject to the mandate at that point? But the mandate does not contain any such contingency trigger. The statute says what it says and Congress’ authority is cabined by its own statute (Remember Ginsburg in Jones).

Even if the Court were willing to read such a contingency into the statute, isn’t consulting with a Doctor the essence of a local as opposed to an interstate decision. And doesn’t the physician patient relationship (which is the subject of ancient privileges) the very essence of .....privacy! Are not the penumbra of the Ninth Amendment triggered by the state’s interference in such an intimate relationship? Are not Griswold, Roe and their progeny now the dagger aimed at the heart of Obamacare?

And I believe that the right to contract (another ancient right that the commerce clause does not permit Congress to abrogate)with an insurance company is part of the physician patient relationship and entitled not only to the protection based upon the limitations of Congress’ power in the Commerce Clause but based upon the Right to Privacy as well.

I think your arguments are compelling. I especially like the idea that "mandating" something is a far cry from "regulating" something which did not previously exist before the mandate.

I suppose the statists will advance the argument that health care presently constitutes 1/6 of the American economy which means that one out of every six dollars which changes hands in America changes hands for healthcare. Surely, they will say, that is interstate commerce, nothing could be more in interstate commerce than such a sizable sector of the economy. The Constitution authorizes the regulation of that sector by all means which are "necessary and proper." The determination of that necessity is to be made by Congress so long as it is reasonable on its face.

To counter that I think we have to go to the philosophical level and say that if the feds cannot micromanage such a personal sphere, one that is so personal and so private that privacy "provisions" of the Constitution forbid even a state as well as the federal government from regulating early term abortions, then surely the feds cannot regulate every intimate procedure between doctor and patient. To grant the federal government such power means that there is virtually no activity in America immune from regulation by Congress. That certainly could not have been the intention of framers of the document granting only enumerated powers.

The federal government is prohibited from micromanaging our bodies not just because it is ultra virus article 1 section 8 but because it runs up against a more highly valued personal constitutional right-the right to have our bodies left free of intrusion from the state.

If the statists counter with the argument that the federal government already regulates the medicines we take and the procedures authorized under Medicare, for example, I think we ought to rebut by noting that no one is compelled to accept Medicare, everyone was free to negotiate his own healthcare with or without insurance until this law which takes that option away from the individual and substitutes a duty to accept an insurance company model approved by the federal government. In doing that, the government has effectively intruded into the private sphere of the patient's body and his relationship with his physician. That is repugnant to the higher value of privacy. Obviously, I am trying to set up a compelling positive value to compete with the formulaic approach which the government will advance relying heavily on the sheer momentum of the case law. If we could find such a value and related back to the language of regulation and mandating I think we have a compelling argument which will get to five justices on a moral level which is where big questions like this ultimately are won or lost.

“The Constitution authorizes the regulation of that sector by all means which are “necessary and proper.””

In reading portions of Scalia’s concurrence in Gonzales v. Raich (the medical mairjuana case) upholding the law, he alluded to the necessary and proper clause:

“Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.””

The power to regulate “extend only to those measures necessary to make interstate regulation effective.” That tells me that he wold find the mandate to be an ultra vires act under the necessary and proper clause.

The last sentence of the quote (national versus local) is key as well. What is truly national and what is truly local (or, to take it even further) personal.

What we could see is a decision striking it down in which Scalia and the strict constructionists strike it on Commerce clause grounds (perhaps necessary and proper clause) while the libertarians (or activists) on the Court, if there are any, choose to strike it on Right to Privacy grounds. It could be a hodgepodge of concurrences, which would suit me fine as long as the statute is eviscerated.

There is much wrong with this act, from a constitutional standpoint, and if the GOP uses its best lawyers to scrutinize it, I think there may be too much wrong with it to sustain it. At least that is my hope.

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