Right-wing delight over Judge Henry Hudson’s (E.D.-Va.) ruling, holding unconstitutional the “individual mandate” provision of the Patient Protection & Affordable Care Act (pdf), ought to be short-lived. Aside from the obvious point that the Act is now only 2 for 3, Judge Hudson’s ruling is at odds with applicable law and ought to be reversed. In fact, higher courts will have no choice but to do just that.
Ken Cuccinelli’s case proceeded on the simple theory that Congress may regulate commercial action, but not commercial inaction. The latter, the theory goes, is non-economic activity, social behavior, of the sort held non-regulable in Lopez and Morrison.
This analysis is flawed. First, if we buy the action/inaction distinction, Lopez and Morrison are inapposite. These cases do not discuss how much or how little economic participation is required to make such conduct regulable; rather, they hold that non-economic activity with secondary economic effects is non-regulable. This doctrinal line is interesting, and favors conservatives, but does nothing to answer the question of how much, or how little, economic participation is required before Congress may intervene.
That question is answered squarely by the Raich and Wickard cases. In both, defendants sought to avoid the interstate commercial network, and thereby avoid congressional regulation, by containing their conduct within state borders. In Raich, defendants sought to avoid the ban on the sale of medicinal marijuana by selling it only within state borders; in Wickard, the defendants tried to avoid laws governing the production of wheat, by growing wheat only for home use. In both cases, the defendants’ intra-state commerce was held regulable for its effects on inter-state commerce.
Judge Hudson distinguishes the cases by noting that, in both, the defendants engaged in affirmative acts (page 21 of the PDF opinion):
In Wickard and Gonzales, the Supreme Court staked out the outer boundaries of Commerce Clause power. In both cases, the activity under review was the product of a self-directed affirmative move to cultivate and consume wheat or marijuana. This self-initialed change of position voluntarily placed the subject within the stream of commerce. Absent that step, governmental regulation could have been avoided.
This action/inaction distinct, however, is illusory, because Judge Hudson is looking at the wrong type of action. The cases do not take intra-state activity and generalize its effects. Rather, the rule in Raich and Wickard is that a decision with implications on interstate commerce is regulable, even if it results in no affirmative interstate act. Intrastate action or inaction is strictly irrelevant. All that matters is the decision to not participate in interstate commerce.
Appellate courts should be sensitive to the distinction; and in any event, the likelihood that the Supreme Court will strike down a major, economically based, controversial piece of legislation, something they haven’t done in seventy years, is slim. But depending on how risk averse we are, we could, and probably should, look at ways to retool the legislation, and thus moot the debate. One option is the state-by-state opt-out being debated by Congress, whereby, if a state has similar provisions for quality care, citizens may avoid the mandate. Other creative solutions exist. One judge’s decision will not be the end of this Act.