The “But You Need To Strike Down Something!” Argument Against the ACA

In comments, I think Pithlord gets at what legal arguments about the ACA ultimately boil down to: “In the real world, if courts never enforce a standard, then it isn’t real.” The commerce clause compels the Supreme Court to strike down something, so even if the arguments for doing so are notably bad, why not the ACA? In his brilliant decimation of arguments that the ACA is unconstitutional, Andrew Koppelman reports a colleague describing it this way: “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” Section III of Koppelman’s paper is a good response to this argument, but to me there are two especially obvious reasons to reject it:

1. U.S. v. Lopez Fortunately, we already have a precedent that sets limits on the commerce powers of the federal government.   And because the law struck down was actually very marginal to the modern federal regulatory state — the law in question didn’t directly regulate the economy, it wasn’t essential to a broader regulatory scheme, and there was no reason to believe (and no attempt by Congress to show) that the states were incompetent to deal with the problem — it didn’t logically threaten New Deal and Great Society programs that only a tiny fringe believes to be unconstitutional.   Because the individual mandate meets all of the crucial conditions that the Gun-Free School Zones Act didn’t, it would lie around like a loaded weapon whenever someone wanted to challenge a federal program and be incapable of principled application, leading to all kinds of crank District Court judges throwing out random parts of the U.S. Code that they don’t like and possibly being upheld in some cases by cranks higher up the appellate chain.   So, in other words, striking down the ACA solves a non-existent “problem” by creating what to any non-libertarian are very serious problems.
2. Gonzales v. Raich Not only does striking down the ACA to send a message solve an imaginary problem, there was a much better recent candidate if one is so inclined, and the resolution of that case should make the constitutionality of the ACA a no-brainer.   To be clear, I think Raich was correct and would have joined the majority, but if you wanted to send some kind of symbolic message this case would have been a much better vehicle.   In terms of the conditions discussed above, the case for prosecuting people growing medical marijuana is weaker than the case for the legality of the mandate — in particular, since nobody disputes that people could have been prosecuted for selling marijuana to people without a prescription, there wasn’t the same free-rider problem that exists with medical insurance markets.   In addition, like Wickard this case reveals the silliness of the “activity/inactivity” distinction.   What made Raich’s actions subject to federal jurisdiction was not the “activity” of growing marijuana (which is in itself a state matter) but the “inactivity” of not buying it from the national market.    For Kennedy and Scalia to vote to strike down the ACA after joining Raich would be hackery of the worst sort — partisan and not “political” in the sense that all constitutional law is political.

I can understand why people sympathetic to arguments that the ACA is unconstitutional want don’t want to focus on the actual merits of the argument, but the pragmatic justifications really don’t work either.   Even if we accept that it’s symbolically important to set judicial limits to the federal commerce power, a regulation that is integral to a a federal regulatory scheme that addresses an important problem that states are clearly incompetent to solve independently would be a horrible, horrible place to draw a line in the sand.