By James Kwak
Constitutional law is not my field. I think we spent one day on the Commerce Clause in my constitutional law class. I’ve barely been following the Supreme Court oral arguments this week because I figured (a) they would be silly, (b) we won’t know anything useful until June, and (c) with the rest of the commentariat focusing on it I would have nothing to add. But even at that distance, I can’t help but be shocked by the ludicrous nature of the proceedings, best represented by the framing of the case in terms of individual freedom and government coercion. According to the Times, the case may turn on Anthony Kennedy’s notion of liberty.
What’s wrong with this? Liberty should have nothing to do with this case. I’ll repeat the analysis, made my dozens of law professors more expert than I (Charles Fried, for example). The question is whether Congress has the power to impose the individual mandate under the Commerce Clause, which gives it the power to regulate interstate commerce. If the individual mandate does in fact regulate interstate commerce, then it’s fine unless it violates some other part of the Constitution.
But there’s nothing in the Constitution that guarantees you “liberty” in the abstract. The Bill of Rights guarantees you various freedoms, from the freedom of speech to the freedom from unreasonable searches and seizures, but those are all specific, not general. The Ninth and Tenth Amendments don’t hold up against an enumerated power of Congress. The Fourteenth Amendment provides broad protection for liberty interests, but only protects them from being infringed without due process of law. The whole liberty thing, in the context of the individual mandate, is a pure ideological framing concocted by small-government fanatics who want the Constitution to be some kind of libertarian scripture that it isn’t.
When Kennedy asks, “Can you identify for us some limits on the commerce clause?” you have to wonder where he’s getting this stuff. The Commerce Clause doesn’t have any internal limits. The limits are in the rest of the Constitution; you couldn’t pass a bill under the Commerce Clause that violated the First Amendment, for example. The Commerce Clause itself has nothing to do with balancing individual freedoms against government action. The balance is in the Constitution as a whole; you have to find some other part of the Constitution that the individual mandate violates.
It’s hard to imagine that the conservative justices don’t understand this—at the very least, their clerks must understand this. Which makes one believe that they’ve swallowed the Tea Party line completely, whether cynically (because they want to reduce the size of government for ideological reasons) or unknowingly.
The only thing that should matter in this case is whether the individual mandate regulates interstate commerce. I think it’s obvious that it does. If you disagree, fine—but that’s where you have to make your case. The fact that, instead, the justices are making ominous warnings about the ever-expanding reach of the federal government implies that they don’t have one.