Ezra Klein: Tuesday’s arguments were all about the search for a “limiting principle,” and Solicitor General Verrilli’s unexpected difficulty articulating one. Is there a limiting principle here?
Akhil Reed Amar: The limit is the Constitution. What Congress does has to be in the enumerated powers. One of those powers is the Interstate Commerce Clause. What are the limits on that power? It only applies to regulations that are interstate and commercial. So Congress has to be actually trying to address a commercial problem that spills over state lines. And that’s clearly true here.
At any given nanosecond, millions of Americans are out of state. Most of my students at Yale are out of state. Three days a week, I am out of my home state. And if I or my students or any of these Americans fall sick, we go to a local ER. That’s an interstate issue. Similarly, if we don’t cover preexisting conditions, we have a lock-in for labor mobility — many workers will be unable to take better jobs out-of-state and thereby contribute more to their families and to the economy. And that’s what the Interstate Commerce Clause was all about: Getting rid of the impediments to genuine interstate commerce, to the free movement of goods and labor.
EK: And the other limits?
ARA: The Necessary and Proper Clause asks whether this is “proper.” Sometimes, regulations can be inherently improper — if they violate the Bill of Rights, for instance. This doesn’t. If it did, states couldn’t do it. Romneycare would be improper. Another question: Has the federal government done it before? Yes, that’s the Militia Act of 1792, where you had to buy your own musket. You needed to buy an ammunition pouch. A knapsack. It was a very detailed mandate. So Obamacare’s critics say, in response, “that’s justified based on a different clause.” Okay, but the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a “well-regulated” militia with a mandate, why can’t Congress regulate interstate commerce the same way?
I’ll give you examples of improper laws, too. A regulation of interstate commerce that requires everyone going from one state to another to submit to a strip search in order to keep illegal products from being transported across state borders. Prohibiting the interstate transmission of any newspaper that attacked the president or the Democratic Party. Those would be regulations of interstate commerce — prohibiting items from crossing state lines — but they would be improper for structural reasons in the Constitution.
My friend Justice Kennedy seems to be worried we’re crossing some rubicon if the government can force me to buy from a private person. And I say, gee, the government takes my money all the time. They took my money and gave it to Detroit. If they can do that, how is it any different in the Constitution or in logic if they tell me to do it on my own.
EK: I asked Randy Barnett that question. He argues that just because the government can do X, doesn’t mean it can do Y, even if Y has the same effect as X.
ARA: That’s true, abstract and unresponsive. It’s not enough to say X and Y. He has to tell me where in the Constitution it says the government can tax me and use that money to buy me health care but it can’t simply tell me to buy health care. Why is it different when it comes to liberty? So show me where in the Constitution it says this, and we can have a conversation.
I start with the Constitution here. It’s the power to regulate interstate commerce. Is this a regulation? Yes. It’s just a regulation like regulating a well-regulated militia with a mandate. Is this interstate? Yes. And I’ve given you reasons why. Third, is it commercial? Yes, it’s purely about who is paying.
EK: In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.
ARA: The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.
In paragraph 28 of McCulloch, Chief Justice John Marshall writes:
A constitution [is] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. [It is wrong] to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
And in paragraph 55 he says that the main security against an abusive legislature “is found in the structure of government itself. In imposing a tax” — or, I would add, a mandate — “the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.” And against bad mandates and bad broccoli laws.
EK: But that argument speaks to a very broad set of powers. It seemed, at times, that Solicitor General Verrilli’s problem was that he felt Justice Anthony Kennedy wanted a limiting principle that made the government’s powers seem less broad than precedent would suggest, and he had trouble articulating one.
ARA: As you know, a lot of this is a frame game, On whose premises are you debating? He’s trying to answer Barnett and Paul Clement’s question, which is jury rigged to attack this law. He should have said the limits are the ones in the Constitution. That this is an easy case because it’s interstate commerce. That the limits are that the issue at hand is truly an interstate spillover and genuinely commercial, and the means used to regulate are not intrinsically improper. And this law remains within those limits.
EK: A year ago, few legal scholars gave this ca se a serious chance of succeeding. Now the odds have dramatically shifted. What happened?
ARA: I would say it has been a normalizing process. In the media, and in conservative district courts, the illusion has been created that half the professoriate is with Randy Barnett and half is against him. That’s not the case:. But yesterday was profoundly disheartening. Until yesterday, almost no top constitutional law scholar was saying anything like this. Smart conservatives on the lower courts, like Jeff Sutton and Larry Silberman and Brett Kavanaugh, were saying, what are you talking about? But there has been this normalization process.