For Federal Power, Does the Mechanism Matter?

If, come June, the Supreme Court decides to strike down ObamaCare’s individual mandate, they’ll accomplish something almost unique in the Court’s history, but not for the reason you think. We expect the Court to strike down unconstitutional laws; even conservatives agree with that proposition (for now). What we don’t often see is a Supreme Court willing to invalidate a law that’s constitutional in its effect, and only deficient in the means it chooses to achieve that goal.*

No-one seems to doubt that Congress could constitutionally coerce citizens into purchasing insurance coverage by, for example, altering the tax code. Even conservative pundits and the Supreme Court seem to agree (pdf). The question is — per Justice Kennedy — whether that matters:

Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.

On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.

It should. The Supreme Court rarely strikes down questionable extensions of Commerce Clause power if they would be otherwise sustainable under separate constitutional rules. Consider the case of the Civil Rights Act of 1964, which used the Commerce Clause to forcibly integrate all public institutions — restaurants, hotels, etc. — nationwide, and regardless of whether those institutions themselves engaged in interstate commerce. No-one can reasonably doubt that the Civil Rights Act was a very good thing. But as an exercise of Commerce Clause power, it’s… well… dubious.

Segregation impacts interstate commerce, Congress said, because it acts in restraint of trade, by relegating wide swaths of the population to second-class status. This barrier to commerce should be regulable under the Commerce Clause. Sure, but as the Supreme Court has repeatedly said since, Congress cannot regulate social problems, no matter how serious, by packaging them as barriers to “commercial” activity. And, moreover, the government’s position that no establishment could evade such regulation, no matter how small or how isolated from national commerce, defied conventional wisdom on the boundaries between state and citizen. To paraphrase Justice Kennedy, by making it impossible for individual Americans to evade the administration’s chosen social policy — integration — the Civil Rights Act threatened to “profoundly change the relationship of the federal government and individual Americans.”

And yet, the Court went on to sustain the Civil Rights Act — twice — holding that the Commerce Clause supported such broad-ranging social policymaking, and even if it didn’t, that Congress’ powers under the Fourteenth Amendment’s Enforcement Clause undoubtedly made up the deficiency.

This was undoubtedly the right decision. If all agree that Congress could constitutionally enact a statute, the Court has only minimal interests in striking it down merely because Congress chose the wrong means to a valid end. And all such interests — avoiding a “slippery slope,” or maintaining consistent doctrine — are historically avoidable, and can be managed by a sufficiently careful Court. Neither McClung nor Heart of Atlanta Motel presaged a total erosion of limits on the Commerce Clause, for example, because the Justices and the public alike knew exactly what the Court was doing.  The Civil Rights Act, for its importance to the country and its clear overlap with Congress’ Fourteenth Amendment powers, was special, and no-one has ever mistaken those decisions carefully upholding it for a general abandonment of Commerce Clause principles.

Similarly, despite the Justices’ intensive search for a “limiting principle” to constrain any decision upholding ObamaCare, there is no real danger that a sufficiently careful decision — acknowledging both the uniqueness of the insurance market and that Congress could constitutionally go far beyond the mandate using its tax power — would inaugurate an era of broccoli mandates or compulsory gym attendance. The Court is the master of its own destiny, as it’s proved time and again. If the individual mandate is an “extraordinary” mechanism, but one entirely incapable of altering the balance of power between the federal government and the states. And that’s all that should matter

* – Except in equal protection challenges. 



  1. I disagree entirely. Mechanism matters and the Civil Rights cases were wrongly decided. Also the 14th doesn’t touch on private conduct.

    1. Specifically, “importance to the country” was a red herring that should have been given no consideration.

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