Congress exercised unprecedented power in passing Obamacare. Although Congress has the power to regulate commerce between states, it does not have the power to order commerce into existence so it can regulate it.
If anything, the individual mandate can only be authorized by the “substantial effects doctrine,” which is the Supreme Court’s broadest test of Congress’s power to regulate interstate commerce. This doctrine arises from the Necessary and Proper Clause and the Commerce Clause, and through it the Court, in Wickard v. Filburn, permitted Congress to take power over Roscoe Filburn, who grew more wheat than he was allowed under the Agricultural Adjustment Act. Although Mr. Filburn personally consumed the wheat rather than placing it in commerce, the Supreme Court ruled that Congress had power over him as a “necessary and proper” extension of the commerce power. They reasoned that an aggregation of similar actions would have substantial effects on commerce, thus making Congress’s power both necessary and proper.
But too often it is forgotten that the Necessary and Proper Clause augments and limits congressional power. Unlike Mr. Filburn, who actively grew wheat, the uninsured have done nothing to voluntarily enter into Congress’s jurisdiction. They are inactive. This “activity/inactivity” distinction, while far from perfect, is crucial for two reasons: 1) It provides the limit of “necessity” on Congress’s power; 2) It provides the limit of “propriety.”
Furthermore, the inactivity/activity distinction is in-line with fundamental tenets of jurisdiction and due process. The “purposeful availment” doctrine of civil procedure requires purposeful action on the part of a prospective defendant before they can be haled into a state court. The Supreme Court has said this requirement springs from fundamental tenets of due process. Similarly, Congress’s limited and enumerated powers allow it to take power over actions rather than people. Jurisdiction over persons qua persons belongs to the traditional police powers of the several states.
The Court has said that Congress can only reach “economic activities” as a “necessary” extension of the commerce power. This distinction satisfies the fundamental jurisdictional requirement of whether an individual could “reasonably expect to be haled” into Congress’s purview. Moreover, a clear line based on “economic activity” does not involve the courts in micromanaging Congress’s decisions, something they cannot and should not do.
Yet in this case, the government asks the Supreme Court to do just that: to analyze Congress’s determination that, in this special instance, the inactivity of not purchasing health care is an “economic activity.” They argue that the decision not to purchase health care is equivalent to the economic activity of shifting the costs onto others. They say this despite conceding that only 37% of the uninsured’s health care expenses are cost-shifted as “uncompensated care,” or about 1.9% of our total health care economy.
Finally, this law is not only unnecessary, it is improper. The power to force someone to give businesses money is incredibly attractive and dangerous. Rather than suffering the political liability of raising taxes, Congress can force citizens to cross-subsidize each other. This is precisely what Congress did here: They avoided the above-the-board taxation and clear budgeting in order to hide the true costs of the law. For this reason, the law is an “improper” use of the substantial effects doctrine that violates, in the words of Chief Justice John Marshall, “the letter and spirit of the constitution.”