Why ObamaCare's Individual Mandate is Unconstitutional (Jones v. United States, 529 U.S. 848)

There seems to be a wide diversity of opinions as to whether the individual Mandate in the recently enacted health care legislation is constitutional or not. I have seen the usual Commerce Clause precedents principally the 1995 Lopez case(which invalidated a portion of the Gun Free Schools Zone Act) and Morrison, in 2000 (which struck down portions of the Violence Against Women Act) cited for the proposition that it is not constitutional. On the other hand, I have seen Commerce clause precedents such as the 2005 case of Gonzales v. Raich (which held that the global, nationwide ban on marijuana was constitutional even as to marijuana grown for personal, medical use) and the 1942 case of Wickard v. Filburn (which sustained on Commerce Clause grounds a New Deal statute limiting the amount of wheat a farmer could grow even for his own personal use).

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

Let me start with my own view, which is that the Commerce Clause has never been, and can never licitly be, construed to permit Congress to REQUIRE activity, economic or otherwise. It may regulate Interstate commerce which is already underway. That is plain from the text of the the interstate commerce clause. The jurisprudence cited above has not, however, been a model of clarity, and none of the cases cited above is closely analogous to the individual mandate in ObamaCare. Morrison and Lopez, which struck down (portions of) the Violence Against Women Act and the Gun Free School Zone Act are qualitatively different factually than the health care mandate. Gonzales and Wickard involved the ACTIVE cultivation of fungible crops (which, despite the plaintiff's protests that they were for personal consumption) could easily have been introduced into interstate commerce, and virtually everyone would concede that interstate agricultural commerce is within the reach of Congress' Commerce power. Again, however, although Gonzales and Wickard appear more analogous at first blush, unlike the Health care mandate, Congress was regulating ACTIVITY in an area (AGRICULTURE) that has traditionally been treated since the time of the framers as subject to Congressional regulation, it being impossible in these two contexts to distinguish between private and public crops.

III. JONES v. UNITED STATES--REGULATION OF COMMERCIAL ENTITIES VERSUS PURELY PRIVATE ONES

This brings me to a much more analogous, and at least from a factual standpoint, persuasive case, which has not(to my knowledge) been cited and which supports the unconstitutionality of the individual mandate here. Moreover, unlike the recent decisions (Lopez, Morrison and Gonzales), which were all 5-4 decisions, this case was a 9-0 decision, authored by Justice Ginsburg in 2000. It is Jones v. United States, 529 U.S. 848 (2000), linked in the first comment below this post.

[Let me begin with one important qualifier. The Court in Jones found that the statute as written did not invoke the full scope of Congress' commerce clause power, which Obamamcare clearly attempts to do, so it was decided on statutory rather than constitutional grounds. I think an analysis of the facts makes this distinction much less significant.]

In 1998, Dewey Jones, of Detroit, tossed a Molotov cocktail into the home of his cousin, James Walker, Jr., in Fort Wayne, Indiana. Walker's home was severely damaged. Subsequently, Jones was convicted in U.S. District Court of violating 18 U.S.C. section 844(i), which makes it a federal crime to "maliciously damage or destroy, ...by means of fire or an explosive, any building... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." The Court of Appeals affirmed Jones's conviction. Before both courts, Jones unsuccessfully argued that section 844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under the Commerce Clause of the Constitution.

No. In a unanimous opinion, delivered by Justice Ruth Bader Ginsburg, the Court held that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity, such that arson of such a dwelling is not subject to federal prosecution under section 844(i). Justice Ruth Bader Ginsburg wrote for the Court that "[w]ere we to adopt the Government's expansive interpretation of section 844(i), hardly a building in the land would fall outside the federal statute's domain."

The Court reversed the conviction, focusing on the phrase in 844(i) "used in", and did not squarely reach the issue whether, had Congress not used the qualifying phrase "used in" but had merely criminalized the destruction of "any building...affecting interstate commerce" words that, when unqualified, signal Congress’ intent to invoke its full authority under the Commerce Clause, the same result would have obtained.

The interesting part of the opinion from the standpoint of the individual mandate is twofold: a) the parts of the opinion that focuses repeatedly on "activity"(as opposed to inactivity) affecting interstate commerce; and b)the broad sweep that such a mandate would have if it applied to every person (as the Government in Jones sought to apply it to every private residence) in the United States. The Court observed:

"Were we to adopt the Government’s expansive interpretation of §844(i), hardly a building in the land would fall outside the federal statute’s domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace of interstate commerce."

The Court continued to use the term "used in" throughout the opinion to avoid, as it said, a full blown Lopez-style constitutional analysis. But it is very difficult to see how the absence of the phrase "used in" would have altered the result in Jones. Its presence merely enabled the Court to decide the case on statutory, rather than constitutional, grounds.

Congress in the PPACA(ObamaCare) makes the following findings, with regard to the individual mandate:

The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph

(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following: (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

"An applicable individual shall for each month beginning after 2013 ensure that the individual,

and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."

Congress is authorized to regulate commerce. Commerce is an activity, defined as "the buying and selling of goods, especially on a large scale, as between cities or nations." In ObamaCare, Congress makes a finding that the mandate to purchase private insurance "regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased." In other words, Congress redefines commerce and activity in such a way that the behavior regulated (or rather required) is neither commerce nor activity. It is difficult to see how the Court can credibly permit Congress to engage in such a stark redefinition of terms which are universally understood to mean something entirely different. It is even more difficult to believe that they would permit such a redefinition of terms in the Constitution as a vehicle for Congress to do what it has never done before, that is: to require individuals to engage in private commercial transactions, of Congress' choosing, with other individuals.

The important lesson in Jones is the distinction that the Court drew between commercial buildings and private residences. Private residences simply lack the connection to interstate commerce that would trigger Congress' power to regulate activity with regard to them, and this is clear from the Court's ruling, even though the holding is on narrower grounds.

Finally, it is impossible to escape the analogy between a private residence and a private individual. Like private residences, private individuals per se lack the connection to interstate commerce that would trigger Congress' power to regulate them. If the Court was so troubled by the extension of Congress' Commerce Clause reach to ACTIVITY as egregious as a bombing involving a private residence, it should be a fortiori even more troubled by the extension of that same regulatory authority to the INACTIVITY (i.e.-the desire to be left alone) of private individuals. Unlike private residences, with regard to which the court labored so hard in Jones, private individuals (and the states) are clothed with all rights under the Ninth Amendment (and Tenth) Amendments not specifically granted to the federal government. Only a complete redefinition of the terms "commerce" and "activity", a redefinition to which the unanimous court in Jones would seem hostile, would save the individual mandate from the ash heap of constitutional history.

“if I go to the hardware store and buy a widget that has been “imported” from another state or another country, am I engaging in interstate commerce? If not, is it because I’m a private citizen, or the end user?”

The short answer is yes. The transit of widgets from state to state can be regulated. Ditto the other hypos.

“What if I choose to build my own widgets for personal use?”

The answer is maybe. Wickard v. Filburn allowed a regulation prohibiting a farmer from growing wheat although he claimed it was for personal use, becasue there was no way to guarantee or verify that wheat, a fungible commodity, would not find its way into interstate commerce. This is basically the rationale of Gonzales which dealt with the “private” cultivation of marijuana for medicinal use.

The bottom line: The commerce clause is broad, which is why the health care legislation is not constitutionally DOA. But no Congress has sought, and no Court has yet approved, as a condition of citizenship, the power to REQUIRE an unwilling individual to engage in commercial activity. No court has ever held, and the definition of commerce does not contemplate, that inaction by an individual amounts to commerce, nor does it affect commerce. Commerce is voluntary activity, not voluntary inactivity. It is really as simple as that, and it is why I believe the Mandate is toast.

Thank you for inviting me to participate on a thread initiated with such a thoughtful essay.

After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair. I fear that we can analyze a thread of Supreme Court cases on the commerce clause and we are but to be pitied like a neurotic housewife for trying to predict the future from the stars. To grope for another analogy, I fear conservatives on entering the Supreme Court are taking a knife to a gunfight.

My cynicism comes from a commonsense overview of the language of the Constitution. The founders, fearful of tyrannical government on the one hand (and equally fearful of its radical mob on the other hand) determined to establish a federal government with limited and divided powers and separated in power from powers which would belong to the states. So when the framers, aware of the self-defeating internecine commercial warfare between the former colonies of the government under the Articles of Confederation, wrote down those powers which would go to the federal government, they assigned commerce as they understood it to the federal government to manage.

Clearly, they never understood a farmer to be in interstate commerce and subject to congressional regulation who grew wheat purely for consumption on his own farm. That the Supreme Court could come to such a conclusion so obviously at variance with the idea of enumerated powers sets the whole Constitution at naught by the simple contrivance of inflating the notion of "commerce" among the states beyond all historical understanding and rational definition. Tack onto that the Necessary and Proper clause and you have intellectually come full circle to the place we are today where there is now virtually no limit to federal power.

One might well point to Justice Ginsburg, the archetypal statist whose brooding presence renders the idea of an impartial Supreme Court a mockery, and her opinion in which she seems to rein in the power of the federal government to control commerce. But consider that what she might well have done was to convert a probable 7 to 2 or 8 to 2 decision rendered on constitutional grounds undermining her leftist strategy to advance federal power through the commerce clause into a harmless 9 to 0 holding on statutory interpretation without constitutional significance. If that was what she accomplished, she acted in the best traditions of Abe Fortis who was sent to the court by Lyndon Johnson as an outrider to protect that flank.

My point is that the likes of Justice Ginsburg takes a gun to a gunfight. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.

Thank you for inviting me to participate on a thread initiated with such a thoughtful essay.

My point is that the likes of Justice Ginsburg takes a gun to a legal debate. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them to be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.

Of course we must fight the good fight and litigate the very best case we can but I am rapidly coming to the conclusion that the case is not won or lost on the briefs, or the facts, or the law, or even on the Constitution but on the nominating process. This is how we have come to the place where the Constitution means precisely the opposite of what the words say.A rational layperson would well look at this and say, if the federal government can control human behavior on this level why did the framers go to the trouble of enumerating powers and reserving the rest to the states and to the people? That ultimately is the question the Supreme Court should set itself to answer.

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