Eugene Volokh's Blog, page 2757
June 30, 2011
More on the Presumption of Constitutionality
In his post below, my co-blogger Ilya Somin concludes that courts should not apply the presumption of constitutionality to the individual mandate:
In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the legislature is passing judgment on the scope of its own authority. When a person or political institution is acting as a judge in its own case, its conclusions should not be considered presumptively valid. The presumption is also particularly improper in an era where most members of Congress of both parties routinely fail to take their constitutional responsibilities seriously and usually just rely on the courts to sort out constitutional issues, as many did at the time the individual mandate itself was enacted.
Nevertheless, Orin is right in pointing out that some Supreme Court decisions say that a presumption of constitutionality should be applied to congressional legislation. On the other hand, many Supreme Court decisions, including Morrison and Lopez, strike down federal legislation without any reference to the presumption. The presumption was also conspicuous by its absence when the Court struck down large parts of the Detainee Treatment Act in Boumediene v. Bush.
. . . . [O]ne might argue that the justices apply the presumption in cases where they think the statute is supported by well-established precedent, but not where Congress has gone beyond the bounds of both previous decisions and the text of the Constitution itself. Applying this logic to the mandate case, I think it can be said that the presumption does not apply if you believe that the mandate is an unprecedented expansion of federal power that goes beyond previous precedent and is not supported by the text of the Constitution. Alternatively, if you think that the mandate is fairly similar to previous statutes that have been upheld by the Court or that it is authorized by the text of the Constitution, the presumption would apply.
Ilya's analytical framework does not appear to me to be based on existing caselaw. First, some of the cases in which Ilya contends that the presumption was not mentioned actually recited it quite clearly. For example, United States v. Morrison says:
Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S., at 568, 577—578 (Kennedy, J., concurring); United States v. Harris, 106 U.S., at 635. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress' power under Article I, §8, of the Constitution.
It's true that not every decision recites the legal point that there is a presumption of constitutionality. But then not every decision recites the legal point that courts have the power of judicial review, and yet we don't consider the absence of that explicit point to be some sort of implicit overturning of Marbury v. Madison.
Ilya's effort to reconcile the cases into a view that the presumption applies depending on whether one thinks a statute is "unprecedented" and beyond constitutional text strikes me as both inconsistent with the cases and based on a misunderstanding of the presumption. On the first point, consider one of Ilya's examples: the statute struck down in Boumediene. That staute was hardly unprecedented. It was actually just restoring the prior law before the Supreme Court creatively read its statues a few years earlier. Nor did it create some obvious textual problem. The Court struck it down, but I think not based on the theory Ilya suggests.
On the second point, some of the confusion may concern what it means to say there is a presumption of constitutionality. In my experience, discussions of presumptions and burdens of proof generally involve three possible issues:
1) Who has the burden of proof,
2) How high is the burden of proof, and
3) What kind of evidence or argument can be used to meet the burden of proof.
My sense is that the presumption of constitutionality is mostly just about question (1); Who has the burden of proof. The cases sometimes talk about (2), but usually only in a vague sense (the presumption is "strong", etc.). In my view, it's pretty much impossible to dispute that there is a presumption of constitutionality in the Question 1 sense: It has been repeated in hundreds of cases over two centuries. It's true that Supreme Court practice is not consistent on Questions 2 and 3, but the law strikes me as extremely clear on Question 1.
One final point. Ilya suggests in comments that if the presumption of constitutionality is only about Question 1, then it isn't very important in a practical sense. I don't think that's right, though, in part because it rules out one of the approaches offered of the mandate opponents. In my experience, many of the arguments against the mandate include some sort of reference to the burden of proof being on the government. Some mention that the burden must be particularly steep. As a result of the presumption of constitutionality, however, I don't think those statements are correct.
Good News on Nominations
The Washington Post reports that the Senate is willing to relinquish some of its authority to block minor executive appointments. Yesterday the Senate voted to reduce the number of executive appointments subject to Senate confirmation. The resolution affects approximately 170 of the 1,400 or so positions currently subject to Senate confirmation. The Senate is also expected to create a streamlined confirmation procedure for nearly 300 more executive positions.
Is the Debt Limit Constitutional?
The Huffington Post reports that some Democrats are urging the White House to ignore the debt ceiling on the grounds that it is unconstitutional. The basis for this argument is Section 4 of the Fourteenth Amendment, which provides "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned." Under this provision, some argue, the federal government is prohibited from defaulting on its debt obligations. Therefore, the argument goes, the President could violate the debt ceiling imposed by Congress if necessary to pay existing obligations.
This is an interesting argument, and one that is unlikely to be resolved by the Courts. There is no indication that President Obama is willing to embrace this argument. If he did, it's not clear what anyone cuold do about it. Were the White House to authorize the assumption of debt above and beyond that authorized by Congress, it is not clear that anyone would have standing to challenge this action in federal court. As a consequence, the question would be left to the political branches.
Lochner and Child Labor Laws
One of the great oddities of discussions of Lochner v. New York is that the case consistently gets blamed for interfering with child labor laws. A few examples:
After discussing Lochner's support for freedom of contract, a public policy textbook by Professor Thomas A. Birkland states that "even the most basic child labor laws were often struck down under the Lochner logic."
Historian Jonathan Rees blogs that if the Supreme Court had continued to adhere to Lochner's vision of freedom of contract, it would have invalidated the FLSA "which includes the first minimum wage and bans child labor."
An encyclopedia entry, of all things, claims that after Lochner, the Supreme Court "expanded on the idea of substantive due process to strike down laws ... prohibiting child labor."
There are two oddities here. First, in the only case I'm aware of to present the issue of direct state regulation of child labor to the Supreme Court, the Court upheld the law unanimously. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913). Given that Lochner v. New York was decided in 1905, it's quite obviously untrue that the Justices thought that Lochner's conception of freedom of contract (or "substantive due process") prohibited child labor laws. The constitutionality of child labor laws was so well-established that advocates for (much more controversial) protective laws for women consistently tried to lump adult women in with children as classes of workers in need to paternalistic legislation.
Of course, the Supreme Court did invalidate federal laws attempting to adopt national child labor rules, though these cases were decided on federalism grounds, not freedom of contract grounds. One could almost forgive various academics for confusing federalism concerns with liberty of contract concerns, but for the fact that by the end of the so-called Lochner era in the late 1930s, every one of the forty-eight states had laws banning and regulating child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction. But it's really bizarre to read over and over again how "Lochner" prevented child labor laws, despite the fact that Lochner managed to coexist with child labor laws in every state.
June 29, 2011
The "Presumption of Constitutionality" and the Individual Mandate Cases
In a recent post, co-blogger Orin Kerr argues that the "presumption of constitutionality" accorded to congressional legislation weighs in favor of the federal government in the individual mandate cases. In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the legislature is passing judgment on the scope of its own authority. When a person or political institution is acting as a judge in its own case, its conclusions should not be considered presumptively valid. The presumption is also particularly improper in an era where most members of Congress of both parties routinely fail to take their constitutional responsibilities seriously and usually just rely on the courts to sort out constitutional issues, as many did at the time the individual mandate itself was enacted.
Nevertheless, Orin is right in pointing out that some Supreme Court decisions say that a presumption of constitutionality should be applied to congressional legislation. On the other hand, many Supreme Court decisions, including Morrison and Lopez, strike down federal legislation without any reference to the presumption. The presumption was also conspicuous by its absence when the Court struck down large parts of the Detainee Treatment Act in Boumediene v. Bush.
If such a presumption had been applied in those cases, the Court would probably have had to reach a different result. For example, in Lopez there was a plausible argument that a statute banning the possession of guns in a school zone was constitutional under previous precedents that the Lopez majority did not wish to overturn, because such possession has important economic effects. Justice Breyer did a good job of articulating this point in his dissenting opinion.
How can we reconcile those cases where the Court applies the presumption of constitutionality with those where it doesn't? The cynical answer is that the Court applies the presumption in cases where it wants to uphold the challenged statute and ignores it in cases where the majority wants to strike the law down. I suspect that this factor really does account for much of the variation between cases.
Less cynically, one might argue that the justices apply the presumption in cases where they think the statute is supported by well-established precedent, but not where Congress has gone beyond the bounds of both previous decisions and the text of the Constitution itself. Applying this logic to the mandate case, I think it can be said that the presumption does not apply if you believe that the mandate is an unprecedented expansion of federal power that goes beyond previous precedent and is not supported by the text of the Constitution. Alternatively, if you think that the mandate is fairly similar to previous statutes that have been upheld by the Court or that it is authorized by the text of the Constitution, the presumption would apply.
The key question to ask is whether this case is more like Lopez, Morrison, and Boumediene, or whether it is more similar to those cases where the Court has applied the presumption, such as Watson v. United States v. Watson, a case cited by Orin. For what it's worth, I think Watson is a clear example of a case where the majority thought that the challenged statute was constitutional on the merits, with or without a presumption of constitutionality. The Court emphasized that it was supported by common law principles and by many decades of precedent.
This, of course, suggests that the presumption applies only to those statutes that the courts are likely to uphold anyway. However, such an approach is consistent with the way the Court has applied the presumption over the last several decades. It's hard to point to any cases where the Court has used the presumption to uphold a congressional statute that it was otherwise inclined to strike down. As currently used by the Court, the presumption of constitutionality is mostly a way to seal the deal on a case the government was likely to win anyway. It turns a strong case into a slam dunk. But it can't be used to transform a probable loss for the federal government into a win.
Obviously, it is still possible to argue that the mandate should be upheld even without applying the presumption. The point of this post is simply that the presumption adds little or nothing to the federal government's case.
Re: Facial vs. As-Applied Challenges to the Individual Mandate
Ilya's post below addresses an important issue in commerce clause litigation: Whether commerce clause challenges should be treated as facial or as-applied challenges and, if the former, how such challenges should be addressed. I largely agree with Ilya's post. Indeed, if anything, Ilya understates the point, particularly with regard to United States v. Lopez. Further, whatever the other merits of Judge Sutton's opinion — which is quite strong, even if I disagree with its conclusion — it mishandles this issue.
In his post below, Ilya writes:
By Judge Sutton's reasoning, the Supreme Court should have rejected the facial challenges brought inUnited States v. Lopez and United States v. Morrison. In Lopez, the Court struck down a federal law banning possession of guns in a school zone as going beyond Congress' authority under the Commerce Clause. But surely some of the people whom that law could have been applied to were using guns that were purchased in interstate commerce or had brought the guns into a school zone in order to facilitate an interstate economic transaction (e.g. — bringing in a gun in order to protect their sale of illegal drugs imported from abroad).
This is not merely a hypothetical. It is, in fact, what happened in Lopez. Alfonso Lopez was not just some kid who happened to bring a gun to school. Rather, as the Fifth Circuit's opinion explains, he was a courier who had been paid to deliver the gun to a gang member. He was a delivery boy engaged in a commercial transaction. As a consequence, his possession was within the scope of the Commerce Clause power. Had Congress passed legislation prohibiting this sort of economic transaction, his Commerce Clause argument would have failed. The reason his Commerce Clause challenge prevailed was not because his conduct was beyond the scope of the Commerce Power, but because the statute at issue (the Gun-Free School Zones Act) was not itself a proper exercise of that power. What the statute prohibited — possession, as such, in a school zone — was beyond the scope of the power, even though the statute reached conduct that could be reached constitutionally.
What the Court's handling of Lopez reveals is that the key question in a Commerce Clause challenge is the nature of the exercise of federal power, not whether, in a given case, the plaintiff's conduct could be regulated or prohibited constitutionally. This is why the GFSZA was invalidated when challenged by someone who was engaged in reachable conduct. It is also why the Lopez Court noted the lack of a jurisdictional element (e.g., a provision limiting the prohibition to gun possession "substantially related" to interstate commerce). The purpose of a jurisdictional element is to preserve a statute's constitutionally to confining its exercise to those activities within the scope of the Commerce Clause power. (See, e.g., the Supreme Court's unanimous opinion United States v. Jones.) Thus, a statute prohibiting the commercial possession of guns in or near a school is constitutional, but a statute imposing a blanket prohibition on gun possession in or near a school is not. In the former instance Congress is engaged in a constitutional exercise of its power, in the latter it is not even though the statutes overlap. Yet under Judge Sutton's approach, the GFSZA should have been upheld because it would be constitutional to prohibit participation in commercial gun transactions like the one in which Lopez was engaged.
The traditional test for a facial challenge is whether there is any set of circumstances in which the statute's application would be constitutional. As Lopez shows, the proper way to apply this test is not to ask whether the statute reaches otherwise reachable conduct — commercial gun possession, the purchase of insurance. Rather the question is whether the class of activities expressly subject to regulation — that is, the conduct that brings an individual within the scope of the statute at issue — is within the scope of the Commerce power. As the Supreme Court has reiterated time and again (albeit mostly in cases upholding statutes against Commerce Clause challenge), what matters is what Congress did, not the specific conduct of the individual challenging the statute's constitutionality. This is why Lopez prevailed. Incidentally, it is also why Angel Raich lost. For in Gonzales v. Raich there was no question that Congress could regulate interstate commerce in drugs. Once the Court concluded that the class of activities subject to the statute — the sale, production, distribution and possession of a controlled substance — was within the scope of the Commerce power, Raich had to lose. Indeed, there is no Commerce Clause precedent in which the Supreme Court has upheld the broader statute but invalidated its application to a specific individual. If the relevant statutory provision is a permissible exercise of the Commerce power, the challenge fails.
The above illustrates why the key issue is defining the class of activities subject to federal control. Listen to the oral arguments in the various Circuit Courts and notice how acting-Solicitor General Neil Katyal takes pains to define the class of activities subject to regulation in economic terms — as "financial decisions about how and when health care is paid for". Judge Martin's decision does much the same, characterizing the class of activities as "the practice of self-insuring for the cost f health care delivery." The problem, in my view, is that these characterizations are not consistent with the statutory provision, as neither accurately characterizes the class as a whole Congress has sought to regulate.
It may be the case that most of those subject to the individual mandate are making "financial decisions" about how and when to pay for the health care or are engaged in self-insurance, but the statute does not limit its application to such people, nor can all those subject to the mandate be characterized in such terms. Not only are there those who would otherwise never purchase health insurance. There are also those who, for whatever reason religious or otherwise, will never purchase health care. (Indeed, under Cruzan, they have a fundamental right to refuse even potentially life-saving care.) That Congress can reach most of those without insurance through other means is immaterial, just as it was immaterial that Congress could have prohibited what Alfonso Lopez actually did had it only passed a different statute. What matters is the statute that Congress actually passed and whether the class of activities over which Congress asserted its authority is, as a class, subject to federal jurisdiction.
So, contrary to Katyal's protestations at the various oral arguments and the opinions of Judges Martin and Sutton, the class of activities at issue is the mere presence in the country without qualifying health insurance, and the question really is whether Congress may mandate the purchase of a given good or service. In other words, the question is whether such a mandate itself is facially constitutional as an exercise of federal power, not whether we can identify a range of situations in which such a mandate could be constitutionally applied.
[For those interested in more this question, I recommend the work of a former student: Nathaniel Stewart, Turning The Commerce Clause Challenge "On Its Face": Why Federal Commerce Clause Statutes Demand Facial Challenges, 55 Case Western Reserve Law Review 161 (2004).]
POST-SCRIPT: Just in case it was not clear, the argument above is not sufficient to establish the unconstitutionality of the individual mandate. The point is rather to identify some of the problems with the way some of defended its constitutionality. Although I believe the mandate should be held unconstitutional, I have long conceded that this is a difficult case, particularly in light of Gonzales v. Raich, and one that implicates first principles about the nature of federal power and the Constitution.
R.I. Legislature Passes Civil Unions Bill
And manages to do what nobody else has done: unite supporters and opponents of same-sex marriage. Marriage Equality Rhode Island says it establishes "second-class citizenry." The National Organization for Marriage says it is "disappointing and dangerous." Caught in the middle were legislators, including the openly gay head of the state house, and Governor Lincoln Chafee (expected to sign the bill), who predicted this was the most they could do for at least a couple of years.
The main issue for the major national gay-rights groups, expressed in a letter to the governor urging a veto, is the breadth of the religious-objector exemptions in the bill. Every new state proposal to recognize same-sex relationships seems to raise the bar higher for these exemptions, and it appears the bar is now too high for these groups. I haven't seen the language yet so I won't offer an opinion here on the weight of their concerns.
The Individual Mandate and the Presumption of Constitutionality
One of the emerging criticisms of the Sixth Circuit opinion upholding the individual mandate — and especially Judge Sutton's separate opinion — is that the Sixth Circuit erred because the individual mandate should be presumed unconstitutional. Unless Supreme Court precedent is so clear that it compels a holding that the statute is constitutional, the argument runs, the mandate should be struck down. For example, Cato's Ilya Shapiro writes:
Under a document establishing a government of enumerated and therefore limited powers, the burden is on that government to prove that it has the power to do something, not on the plaintiffs to disprove that power. Never has the Supreme Court ratified the federal power to force someone to buy a product in the marketplace under the guise of regulating commerce. Indeed, never, not even during the height of the New Deal, had Congress asserted such a power—until the health insurance mandate.
If I understand him correctly, our own Ilya Somin appears to be making a similar point with the following criticism:
The Sixth Circuit ruling would be defensible if it were compelled by Supreme Court precedent. However, both Martin and Sutton admit that the Supreme Court has never previously ruled on a case involving a mandate of this type, and has also never previously addressed the issue of whether the Commerce Clause authorizes regulation of inactivity. Therefore, it's hard to defend their reasoning on the grounds that it was somehow compelled by precedent.
More colorfully, commenter WolfWalker writes in response to me:
There's simply no way that the mandate can be permitted under the spirit of the Constitution. This endless hairsplitting about "is it really most sincerely unconstitutional, or can we find a way to let it stand" is a corruption of the entire spirit of the Constitution, and the LIMITED FEDERAL GOVERNMENT that it was intended to create. The United States federal government is not a Windows system where anything that is not expressly forbidden is allowed. It's a Unix system, where any action that is not expressly permitted is forbidden.
I've heard others make similar arguments, both previously and in some of today's threads. The mandate is so exceptional, the argument goes, that those seeking to uphold its constitutionality must overcome a steep burden of proof.
It's worth noting, however, that the law is to the contrary. The United States Supreme Court has long imposed a presumption of constitutionality on judicial review of statutes, not a presumption of unconstitutionality. See, e.g, O'Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251, 257–58 (1931) (citing cases). Further, the Court has described the presumption of constitutionality as "strong" when courts review an act of Congress. See, e.g., United States v. Watson, 423 U.S. 411, 416 (1976). As a result, the burden of proof here is on the plaintiffs, not the defendants.
I realize that the presumption of constitutionality is unpopular among many people who happen to think that the mandate is unconstitutional under existing precedents. Randy Barnett has argued that the presumption of constitutionality is wrong, for example, and I believe Ilya Somin agrees. But lower court judges like those on the Sixth Circuit don't have the authority to ignore or overturn the long-standing Supreme Court caselaw that establishes the presumption of constitutionality. Obviously this doesn't settle the constitutionality of the mandate; it only addresses who has the burden of proof. But I think it's a helpful point to keep in mind, as at least some of the criticism of the Sixth Circuit opinion appears to assume the contrary presumption.
In Praise of the Cert Pool . . . dot com
Now that the real business of October Term 2010 is over, I just wanted to say a few words in praise of the cert pool. No, not that cert pool. The certpool.com, a website run by Austin appellate lawyer Don Cruse that tracks the progress of petitions by federal courts of appeals and by state courts of last resort. It is an extremely helpful way of keeping a close eye on the Court's docket.
The one shortcoming of the website is that its focus on appellate courts doesn't cover all of the Supreme Court's docket. Even apart from original actions (which, candidly, are hard for even hardcore Court buffs to get worked up about, although I guess I should speak for myself), every now and again, you get a case that comes straight from a three-judge district court. You won't find those on certpool.com. But surely, that must only happen.
Anyhoo, good work, Don. Keep it up.
Judge Sutton on Facial vs. As-Applied Challenges to the Individual Mandate
In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs' case must fail as a "facial" challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future "as-applied" challenges, which contend merely that the law is unconstitutional in certain specific cases:
For now, whatever else may be said about plaintiffs' activity/inactivity theory of commerce power, they have not shown that the individual mandate exceeds that power in all of its applications. Congress may apply the mandate in at least four settings: (1) to individuals who already have purchased insurance voluntarily and who want to maintain coverage, but who will be required to obtain more insurance in order to comply with the minimum-essential-coverage requirement; (2) to individuals who voluntarily obtained coverage but do not wish to be forced (at some indeterminate point in the future) to maintain it; (3) to individuals who live in States that already require them to obtain insurance and who may have to obtain more coverage to comply with the mandate or abide by other requirements of the Affordable Care Act; and (4) to individuals under 30, no matter where they live and no matter whether they have purchased health care before,who may satisfy the law by obtaining only catastrophic-care coverage. The valid application of the law to these groups of people suffices to uphold the law against this facial challenge.
While future challenges to the law have hills to climb, nothing about this view of the case precludes individuals from bringing as-applied challenges to the mandate as the relevant agencies implement it.....
Sutton appears to be arguing that the plaintiffs' claim that the mandate is an unconstitutional regulation of inactivity does not apply to the first three of the above situations because people who fall into these categories have already engaged in activity in the health insurance market. Therefore, the mandate could be imposed on them even under the plaintiffs' reasoning.
Sutton's analysis rests on a misinterpretation of the plaintiffs' argument. The key point is not that a given plaintiff hasn't engaged in economic activity, but that the regulation imposed by Congress does not require any such activity as a prerequisite for covering them. The fact that some of the individuals covered by the mandate could be regulated by a more narrowly drawn law (e.g. — one that covered only people who had already purchased health insurance) does not mean that the present mandate is constitutional as applied to them. Their having previously engaged in economic activity that Congress could regulate is purely coincidental. It is not the reason why the mandate applies to them, under the terms of the law itself.
By Judge Sutton's reasoning, the Supreme Court should have rejected the facial challenges brought in United States v. Lopez and United States v. Morrison. In Lopez, the Court struck down a federal law banning possession of guns in a school zone as going beyond Congress' authority under the Commerce Clause. But surely some of the people whom that law could have been applied to were using guns that were purchased in interstate commerce or had brought the guns into a school zone in order to facilitate an interstate economic transaction (e.g. — bringing in a gun in order to protect their sale of illegal drugs imported from abroad). In Morrison, the Court invalidated a federal law creating a civil penalty for gender-motivated crimes of violence. But some of the people covered by the law might have committed their crimes on interstate trains or buses or committed them for the purpose of interfering with women engaged in interstate economic transactions. By Judge Sutton's reasoning, Lopez and Morrison struck down laws that did not " exceed" Congress' power "in all of [their] applications."
The Court ruled the way it did in Morrison and Lopez because the challenged laws, as actually written, did not require any kind of connection to interstate commerce as a legal prerequisite for their application. The fact that some potential defendants happened to have such a connection was legally irrelevant. The same reasoning applies to the individual mandate. Judge Sutton's approach, by contrast, would rule out virtually all facial challenges to any law, so long as there is even one conceivable situation where the law leads to a prosecution that could have been constitutional with a more narrowly drawn statute.
UPDATE: To illustrate my point a bit further, consider a hypothetical statute giving police the power to break into any house any time they want. In my view, that statute would be facially invalid. By contrast, Judge Sutton would have to uphold it against a facial challenge because some of the searches allowed by the statute would involve cases where the search was "reasonable" under the Fourth Amendment (e.g. because the authorities had probable cause to believe that a crime had recently been committed on the premises).
UPDATE #2: It is not entirely clear why Judge Sutton thinks that the plaintiffs' argument does not apply to his fourth category, people under the age of 30 who are only required to purchase "catastrophic" health insurance coverage under the law. Not having catastrophic coverage is no more "economic activity" than is not having a broader insurance policy. If the plaintiffs' theory applies to the latter case, it applies to the former as well. Judge Sutton seems to think that the two are different because congressional legislation requires some providers to provide emergency health care treatment for free. But it is not clear why this distinction should have any constitutional significance. If Congress required some supermarkets to provide free broccoli, would that justify a broccoli purchase mandate?
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