Barnett on the Constitutionality of the Individual Mandate, and more on Commandeering

September 22nd, 2010

Randy Barnett has posted a new article to SSRN discussing the constitutionality of the mandate. In this new piece, he fleshes out in some detail his argument that the mandate violates the commandeering principle as articulated in Printz v. United States. Here is the relevant portion:

If commandeering the states is an improper means of executing a federal power under the “letter” of the Tenth Amendment “and spirit of the Constitution,” might not commandeering the people be improper as well? Put another way, if imposing mandates on state legislatures and executives intrudes improperly into state sovereignty, might mandating the people improperly infringe on popular sovereignty?
Recall that, in Printz, Justice Scalia identified several sections of the constitution that presupposed the principle expressed in the Tenth Amendment.174 As it happens, the text of the Constitution also contains several express prohibitions on commandeering the people. Persons may not be mandated to quarter soldiers in their homes in time of peace,175 to testify against themselves,176 or to labor for another.177 Although private property may be taken “for public use” if just compensation is made, it may not be commandeered for private use.178
These express prohibitions on commandeering the people signal that mandates are different than regulations that tell persons who choose to engage in economic activity how they must do so — or that prohibit certain activities altogether. To see why, consider the duties the federal government does impose on the people: register for the draft and serve if called, sit on a jury, fill out a census form, and file a tax return. None of these duties are imposed via Congress’s power to regulate economic behavior. Instead, all have traditionally been considered fundamental duties that each person owes to the government by virtue of American citizenship or residency. Each of these duties can be considered essential to the very existence of the government, not merely convenient to the regulation of commerce.
Barnett summarizes the issue here:
Can a duty to purchase health insurance from a private company possibly be justified as being on a par with these other traditionally recognized fundamental duties of citizenship? Put another way, does the reason why a mandate is a proper means for carrying into execution the power of Congress to raise and support an armies also justify imposing what might be called “economic mandates” on the people that are convenient to its regulation of commerce among the several states? The propriety of the mandate turns on this question.
And why is Barnett writing this article? In the words of Justice Brennan, to help count to five (justices that is).
If the Act continues to be perceived as unpopular, I doubt that a majority of the Court would stretch the “essential to a broader scheme” doctrine to reach inactivity and authorize economic mandates. And both Justices Thomas and Scalia would immediately see that an economic mandate must not only be necessary, it must also be proper. These Justices would also realize that the logic of Justice Scalia’s opinion in Printz could rather simply be carried over to this novel claim of congressional power. Justice Scalia could write in his sleep the opinion holding that economic mandates in general, and the individual insurance mandate in particular, constitute an improper commandeering of the people.
Extending its anti-commandeering doctrine from the states to the people may sound radical upon first hearing. But because the individual mandate is so unprecedented, this extension of the Court’s anti-commandeering doctrine would apply to just one law: the Patient Protection and Affordable Care Act. The minimalist character of this theory is likely to appeal to Chief Justice Roberts, as well as Justices Kennedy, Alito and Scalia.