Regulate/Mandate: Two Perspectives

• Author: John Valauri
• Pages: 1-51

REGULATE/MANDATE:

TWO PERSPECT IVES

JOHN VALAURI*

“‘When I use a word,’ Humpty Dumpty said in a rather scornful tone,

‘it means what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so

many different things.’”1

I. INTRODUCTION

If nothing else, the debate and litigation over the constitutionality of

the “individual mandate”2 of the Patient Protection and Affordable Care

Act of 20103 (ACA) has demonstrated that its disputants—on the bench

and off—do not even agree on the meaning and scope of basic terms in the

conflict. Most notably, they cannot agree on the meaning and scope of the

word regulate in the Commerce Clause4 and whether that word gives

Congress the power to enact economic mandates.5 Several prominent

writers recently argued that this lack of agreement arose because the two

sides of the debate look at and conceptualize the terms of the mandate

debate (and the Constitution itself, for that matter) through the looking

glasses of quite different gestalts,6 visions,7 or worldviews.8 Regardless of

Copyright © 2014, John Valauri.

* Professor of Law, Northern Kentucky University, Salmon P. Chase College of Law.

The author wishes to thank and recognize Heath er Tackett, Nathan Becht, and Christopher

Hoskins for their valuable research assistance.

1 LEWIS CARROLL, ALICE’S ADVEN TURES IN WONDERLAND AND THROUGH THE LOOKING

GLASS 171 (Schocken Books 1979) (1865).

2 26 U.S.C. § 5000A(a) (Supp. IV 2010) (“An applicable individual shall for each

month beginning after 2013 ensure that the individual, and any dependent of the individual

who is an applicable individual, is covered under minimum essential coverage for such

month.”).

3 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119

(2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No.

111-152, 124 Stat. 1029 (codified as amended in scattered sections of 26 and 42 U.S.C.).

4 U.S. CONST. art. I, § 8, cl. 3 (“The Congress shall have Power . . . To regulate

Commerce with foreign Nations, and among the several States, and with the Indian

Tribes . . . .”).

5 See infra Part VI.A.

6 See Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91

WASH. U. L. REV. (forthcoming 2014) (manuscript at 2), available at http://papers.ssrn.

(continued)

2 CAPITAL UNIVERSITY LAW REVIEW [42:1

the metaphor, the point is that the difference between the two sides goes

far beyond a simple disagreement over particular facts or propositions of

law; instead, it is global, basic, and foundational, involving quite different

understandings of the text and underlying principles and purposes of the

Constitution.

This Article asks where this situation leaves the country and seeks to

determine the effect of these competing perspectives on the wrangle

over—in particular—the individual mandate and—in general—on

constitutional argument and theory. While this diversity of viewpoints

precludes easy consensus, it does not mean that the two sides have nothing

in common and just talk past each other without actually joining the issue.

After all, the two sides do share the same constitutional text and

precedent.9 However, they do not share the same constitutional doctrines,

purposes, and underlying principles. They even weigh and interpret quite

differently that which they do share, thus leading to opposition.10 This

situation is not completely negative, but is rather a mi xed blessing because,

while it makes disagreement inevitable, it also makes argument possible.

As the adversarial process at trial can lead to the discovery of truth (or so

we believe in our judicial system), the contest of constitutional gestalts can

illuminate unseen and undervalued aspects (both strengths and

weaknesses) of constitutional argument and doctrine in a way that

unquestioned consensus does not and cannot.11

In order to better understand the effects of this diversity of perspective

on constitutional debate, doctrine, and decisions, this Article examines

com/sol3/papers.cfm?abstract_id=2152653 (“Wh atever direct legal effects the Court ’s

decision ultimately produces, the thesis of this essay is that the most important and far-

reaching legal effects of NFIB are likel y to be indirect. NFIB marks a destabilization of

what we can call the ‘constitutional gestalt’ regarding the meaning and implications of what

is referred to as the ‘New Deal Settlement.’” (footnotes omitted)).

7 See Gillian E. Metzger, To Tax, to Spend, to Regulate, 126 HARV. L. REV. 83, 83

(2012) (“Two very different visions of the national government underpin the ongoing battle

over the Affordable Care Act . . . .” (footnote omitted)).

8 See Martha Minow, Affordable Convergence: “Reasonable Interpretation” and the

Affordable Care Act, 126 HARV L. REV. 117, 118 (“[T]he two opinions embodied

distinctive approaches to the issues at hand, to con stitutional interpretation, and indeed, to

how to view the world.”).

9 See id. at 122 (“These differences in view do not reflect reliance on different sources;

both opinions used the same texts and decisions.”).

10 See id.

11 See infra Part II.B.1.

2014] REGULATE/MANDATE 3

some important definitions, terms, and distinctions from the individual

mandate debate.12 These include the definition of “regulate” in the

Commerce Clause, the activity–inactivity distinction that individual

mandate critics proposed,13 and the words “mandate”14 and

“commandeer”15 from the individual mandate lexicon. These terms and

distinctions attempt, in their own ways and with varying degrees of

success, to clarify the limits and meaning of regulation. This Article takes

these items from the individual mandate lexicon through the contest of

constitutional worldviews in order to better understand and evaluate these

terms and their interplay with larger constitutional perspectives.16 This

Article aims to capture something of the back-and -forth of the particular

and the holistic in constitutional argument and thinking—to capture not

only the fixed points of reference, but also the practice in process. In this

way, this Article seeks to take constitutional theory from its usual goal of

Newtonian objectivity to an appreciation of its relativistic side too. The

meaning and salience of terms and distinctions are not simply functions of

the perspectives because the relation explored here is reciprocal rather than

one-directional. They also help to constitute and shape these very

perspectives. Examining constitutional law and theory as a process and as

a practice will show how elements and notions, which appear to be

contradictory and mutually exclusive in the abstract, may actually

complement and supplement each other in debate, discourse, and litigation

when taken holistically and practically.17

12 See infra Part II.

13 Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2587 (2012) (opinion

of Roberts, C.J.) (“The individual mandate, however, does not regulate existing commercial

activity. It instead compels individuals to become active in commerce by purchasing a

product, on the ground that their failure to do so affects interstate commerce. Construing

the Commerce Clause to permit Congress to regulate individuals precisely because they are

doing nothing would open a new and potentially vast domain to congressional authority.”).

14 Id. at 2593 (“The most straightforward reading of the mandate is that it commands

individuals to purchase insurance. After all, it states that individuals ‘shall’ maintain health

insurance.”).

15 New York v. United States, 505 U.S.144, 161 (1992) (“As an initial matter,

Congress may not simply ‘commandee[r] the legislative p rocesses of the States by directly

compelling them to enact and enforce a federal regulatory program.’” (alteration in

original) (quoting Hodel v. Va. Surface Minin g & Reclamation Ass’n, 452 U.S. 264, 288

(1981))).

16 See infra Parts IV–VI.

17 See infra Part II.B.