When in U.S. v. Lopez the Supreme Court struck down the Gun-Free School Zones Act of 1990, it was the first time in nearly six decades that the court had invalidated federal legislation on the basis that it exceeded Congress’s commerce power. In short order, it followed up with U.S. v. Morrison, holding that a provision of the Violence Against Women Act was unconstitutional for the same reason. Last time, I characterized these cases as the commerce counter-revolution, which put an end to the earlier revolution in commerce clause jurisprudence that had massively expanded the scope of congressional legislative power.
Gonzales v. Raich
But reports of the Commerce Clause’s demise were greatly exaggerated, for in 2005, the court upheld the federal government’s authority to prohibit the possession of homegrown marijuana consumed for medicinal purposes under the Controlled Substances Act as a permissible application of the commerce power in Gonzales v. Raich. Raich, whose conduct was legal under California’s Compassionate Use Act but not under the federal CSA, sued the federal government, arguing that Congress lacked authority to prohibit her entirely intrastate non-commercial use of marijuana under Lopez and Morrison.
Justice Stevens, writing for a six Justice majority that did not include Chief Justice Rehnquist (the author of both Lopez and Morrison), observed that the court’s previous commerce cases “firmly establish[] Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate activities.”
He analogized the prohibition on homegrown marijuana to the regulation of wheat upheld in Wickard v. Filburn. There, Filburn grew excess wheat that was consumed on his own farm in violation of the Agricultural Adjustment Act. Although the wheat was not itself produced for sale in interstate commerce, Congress could regulate its production because of the effect such activity had in the aggregate on interstate wheat prices. He reasoned:
In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
Raich pointed out that Wickard did involve economic activity because Filburn was operating a farm that produced goods for commerce, although the specific activity of producing excess wheat to feed his livestock was not itself economic. Her conduct of growing and consuming marijuana was, on the other hand, not part of any larger commercial enterprise.
Justice Stevens was unimpressed with this distinction, however, because the court in Wickard itself did not rely on the overall commercial nature of Filburn’s farm in upholding the Agricultural Adjustment Act. The Wickard court specifically held, he said, that Congress may regulate non-economic intrastate activity (production for home consumption) so long as it was part of a larger class of economic activities (production of a commercial product generally) that affects interstate commerce.
Raich also objected that Congress had made no factual findings that home consumption of medical marijuana had any effects on the interstate drug trade. Although the court previously in Lopez and Morrison had brought Congress to task for failing to tie regulated conduct to interstate commerce in a direct enough fashion, Justice Stevens let Congress off the hook this time, holding that the court would not ask for more than a “rational basis” for believing that such effects exist.
In fact Justice Stevens saw no tension between their ruling in this case and the court’s earlier decisions in Lopez and Morrison, because there had been no interstate economic activity sought to be regulated by the laws in those two cases. The central activities targeted by the Gun-Free School Zones Act and the Violence Against Women Act, gun possession in schools and gender-based violence respectively, were not themselves interstate economic activities. The CSA, in contrast, was aimed at prohibiting the interstate trade in narcotics, which obviously fell within the commerce power. The fact that Raich’s concededly intrastate non-commercial activity happened to be swept up in that wider permissible regulatory net did not invalidate the law.
Justice Steven’s distinction notwithstanding, however, Raich is hard to square with certain key elements of Lopez and Morrison; in particular the requirements that Congress robustly justify the impact of the specific regulated activity on interstate commerce and that the activity itself be economic in nature. Perhaps, confronted with what they found to be an unappealing application of their restrictive take on the Commerce Clause, the court was ready to walk back that approach.
NFIB v. Sebelius
But Raich was seemingly a ticket good for only one ride, because in 2012’s National Federation of Independent Businesses v. Sebelius the court returned to form, holding that Obamacare’s individual mandate, which required anybody who did not purchase approved health insurance to pay an annual penalty to the IRS, was not supported by the Commerce Clause.1
The federal government argued that the mandate fell squarely under the commerce power because insurance is quintessentially a cost spreading mechanism across the national healthcare market. Forcing individuals to participate lowers premiums for everybody nationwide because many healthy people who don’t use much healthcare will contribute premiums, expanding the risk pool. Conversely, people without insurance avoid seeking healthcare until they are in critical condition, at which point emergency rooms are required by law to treat them regardless of ability to pay. Those costs are passed onto other consumers. The individual mandate was intended to ameliorate these cost-shifting problems, which can only be addressed at the national level due to the nature of health insurance.
But Chief Justice Roberts, writing for a fractured majority, distinguished between “activity” that may be regulated pursuant to the commerce power, and inactivity that is beyond its scope. He wrote that “Congress has never relied on that [commerce] power to compel individuals not engaged in commerce to purchase an unwanted product.” The individual mandate, because it required individuals to purchase insurance they didn’t want on the theory that failure to do so affected interstate commerce, was a bridge too far.
“But wait,” you’re screaming, “the effect on interstate commerce of not buying stuff was the whole point of Wickard and Raich!” Indeed. But the Chief Justice rejoined that those cases still involved an “activity:” production of wheat and marijuana. Here, conversely, there was no existing activity to regulate; rather the government was forcing individuals to engage in the activity in question, acquiring insurance. The power to regulate an existing activity, he said, was not the power to create it in the first place.
The “Government’s logic would justify a mandatory purchase to solve any problem.” Since obesity is a nationwide health epidemic impacting prices of healthcare services, presumably the federal government could make you eat your veggies (or at least buy them)! And while it’s true that everybody will need healthcare at some point in their lives, the “Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.”
Nor could the individual mandate be justified as “necessary and proper” to regulating the interstate health insurance market. It might indeed be a “necessary” regulation of interstate commerce in the sense of “convenient” or “conducive,” but it wasn’t a “proper” means of doing so because such expansive authority would destroy the enumerated powers principle, and in the process “undermine the structure of government established by the Constitution.”
Enumerated powers, unending problems
From boats and banks to marijuana and mandates, what a long strange trip it’s been. And I’m not sure we’re a lot closer to defining the constitutional meaning of “commerce.” It feels like the outer limits of the commerce power are mostly defined by vibes. More cynically, “commerce” seems like a mere cypher, an empty vessel into which the court pours it raw policy preferences.2 But these kinds of line-drawing problems are baked into the very notion of enumerated powers, as Chief Justice Marshall himself observed McCulloch v. Maryland:
But the question respecting the extent of the powers actually granted [to the federal government] is perpetually arising, and will probably continue to arise so long as our system shall exist. In discussing these questions, the conflicting powers of the General and State Governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.
The court nonetheless upheld the individual mandate under the taxing power. I’ll return to that part of the decision in a future post.
Justice Scalia, for example, was a strict constructionist warrior when it came to regulating firearms and preventing violence against women, but miraculously discovered the virtues of “necessary and proper” federal power when it came to prohibiting the devil’s lettuce.