Today's Sixth Circuit Decision Upholding the Individual Mandate

(Ilya Somin)

Today's 2–1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges' votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress' powers under the Commerce Clause.

At the same time, Martin and Sutton's opinions highlight a central weakness of the pro-mandate position. Unlike previous decisions upholding the mandate, which argued that failing to purchase health insurance is "economic activity," they conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of "substantial" economic effect. The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noneconomic activity has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships.

Obviously, Congress will not enact every conceivable harmful mandate that the Martin-Sutton analysis would authorize. But the risk of abuse is far from purely theoretical, since many interest groups can and will lobby for laws that compel people to purchase their products.

The sweeping congressional power authorized by Martin and Sutton's opinions makes hash of the text of the Constitution, which gives Congress the power to regulate interstate and foreign commerce, not a blanket power to mandate anything that has a "substantial" economic effect. It also makes most of the rest of Congress' Article I powers superfluous. For example, there would be no need for a separate power to tax. After all, failure to give the government some of your money voluntarily surely has substantial economic effects. Therefore, virtually any tax could be imposed through the Commerce Clause.

The Sixth Circuit 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 compelled by precedent.

Martin and Sutton also both rely on the argument that a health insurance mandate is special case because everyone will use health care at some point in their lives. This part of their reasoning adds little to previous statements of the same argument, which I criticized here.

Much of Judge Sutton's Commerce Clause argument relies heavily on the notion that the plaintiffs' case must fail as a "facial" challenge to the mandate because some possible applications of it are constitutional even under his interpretation of the plaintiff's own theory of the case. He leaves the door open to "as-applied" challenges, suggesting that the mandate may still be unconstitutional as applied to people who have not previously purchased health insurance. I may take up this aspect of Sutton's argument in a follow-up post.

Finally, it's worth noting that Sutton and Judge Graham both reject the government's claim that the mandate is a valid exercise of Congress' power to tax, instead concluding that it is a penalty. Judge Martin avoids addressing this issue directly, but does hold that the mandate is a penalty in the section of his opinion discussing standing. So far, the tax argument has been rejected by every judge who has ruled on it, including those who have upheld the law on other grounds.