Commerce, Death Panels, and Broccoli: or Why the Activity/inactivity Distinction in the Health Care Case Was Really About the Right to Bodily Integrity

• Publication year: 2013

Commerce, Death Panels, and Broccoli: Or Why the Activity/Inactivity Distinction in the Health Care Case Was Really About the Right to Bodily Integrity

Michael Dorf

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COMMERCE, DEATH PANELS, AND BROCCOLI: OR WHY THE ACTIVITY/INACTIVITY DISTINCTION IN THE HEALTH CARE CASE WAS REALLY ABOUT THE RIGHT TO BODILY INTEGRITY

Michael C. Dorf^*

Abstract

In National Federation of Independent Business v. Sebelius, five Justices of the United States Supreme Court opined that the Commerce Clause does not authorize Congress to regulate "inactivity." In giving effect to the intuition that laws compelling activity impose a more serious burden on the individual than do laws forbidding activity, these Justices mistakenly imported a libertarian principle into the Court's federalism jurisprudence. Indeed, the intuition is not even true in all individual rights cases. Nonetheless, in the aim of understanding the logic behind the position, this Article explains how affirmative mandates that infringe the substantive due process right to bodily integrity can be more intrusive than prohibitions. In so doing, it draws connections between the political charge that the health care law would establish "death panels" and the effective use of the hypothetical fear that upholding the law's so-called individual mandate would permit the government to require people to eat broccoli.

Introduction

In National Federation of Independent Business v. Sebelius,¹ five Justices of the United States Supreme Court accepted the proposition

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that the Commerce Clause did not provide Congress with the power to enact the so-called "individual mandate" of the Patient Protection and Affordable Care Act (ACA).² Why not? Because, they said, the Commerce Clause does not authorize Congress to regulate "inactivity."³ The Court⁴ thus endorsed a distinction—between regulable "activity" and non-regulable "inactivity"—that had not previously played an important, or arguably any, role in its Commerce Clause doctrine.

Part I of this Article explains why the activity/inactivity distinction is a mostly harmless but nonetheless unnecessary addition to Commerce Clause jurisprudence.⁵ It is mostly harmless because Congress rarely needs to adopt mandates and, even after the ruling in the ACA case, can enact de facto mandates via the taxing power. The distinction is unnecessary because the fears of the five conservative Justices who endorsed the activity/inactivity distinction were unfounded. They worried that if Congress could mandate participation in commerce then its powers under the Commerce Clause would be limitless. But, as I shall explain, it is fairly simple to identify laws that Congress would be powerless to pass, even if the ACA had been upheld under the Commerce Clause. The Court could

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have preserved the notion that the powers of Congress are limited with a rule that allows many but not all mandates, and the shape of that rule could have been readily adapted from the Court's own recent Commerce Clause precedents.

Why, then, did the conservative majority—the four dissenters plus the Chief Justice—vote to forbid mandates under the Commerce Clause? The answer to that question can be found in a phrase first uttered by Justice Kennedy during the oral argument and later repeated by Chief Justice Roberts in the portion of his opinion that rejected the Commerce Clause as authority for the ACA mandate. Justice Kennedy asked Solicitor General Verrilli whether the government ought "not have a heavy burden of justification" when a law "chang[es] the relation of the individual to the government."⁶ Echoing the sentiment, the Chief Justice wrote in his opinion that permitting "Congress the same license to regulate what we do not do" as it enjoys with respect to what we affirmatively do, would "fundamentally chang[e] the relation between the citizen and the Federal Government."⁷

Note the difference in wording between Justice Kennedy's question and Chief Justice Roberts's statement. Whereas the Chief Justice was careful to limit his point to the relation between the citizen and the federal government, Justice Kennedy had referred to a change in the relation between the individual and "the government" in a generic sense. I believe that Justice Kennedy's seemingly less precise usage more accurately captured the core intuition driving the votes of all five conservative Justices who sought to limit government's ability to regulate inactivity. The intuition is that government—at any level—may properly tell people what they cannot do, but not what they must do.

Put less sympathetically, in the ACA case the activity/inactivity distinction was a libertarian principle masquerading as a principle of

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federalism. Or, as an amicus brief on behalf of a group of law professors (including myself) put it:

While offered as a challenge to Congress's commerce power, [the ACA challengers'] claim is really about individual liberty, reflecting an instinct about how far any government, state or federal, may go in ordering the affairs of its people. Plaintiffs effectively ask this Court to import a substantive due process limitation into the Commerce Clause.⁸

I continue to think that the five conservative Justices were wrong to import a substantive due process limitation into the Commerce Clause, but after explaining why, I shall take up the further question of whether substantive due process itself ought to be understood as barring affirmative mandates, either conclusively or presumptively.⁹

Part II of this Article addresses that question.¹⁰ I begin by rejecting the notion that there is any general prohibition or even presumption against affirmative government mandates. Nonetheless, the doctrine that has developed around a particular set of substantive due process rights—those that may be understood as implementing the right to bodily integrity—does indeed reflect an intuition that affirmative mandates are more intrusive than negative prohibitions. I explain why this intuition might be regarded as sensible. I also explain how the same intuition connects the political hysteria around the ACA with the legal case that was marshaled against it. Seeing the matter through the lens of bodily integrity connects the false but politically effective charge that the ACA would establish "death panels"¹¹ with the ACA's constitutional challengers' effective use of the fear that upholding the mandate would permit the government to require

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people to eat broccoli. Both death panels and forced consumption of broccoli raise the specter of a government that directs people's intimate decisions about the use of their bodies. That is a legitimate concern even if it was misplaced in the ACA case and even though it contradicts decades of attacks on modern substantive due process doctrine by conservative Justices.

I. Commerce

Despite the sturm und drang that accompanied the ACA litigation, the case may not be especially important as a matter of constitutional doctrine because neither the Commerce Clause ruling nor the taxing power ruling imposes a serious limitation on the actual authority of Congress. To be sure, writing in the New York Times just days after the ACA ruling, Professor Pamela Karlan characterized the conservative majority—the four dissenters plus the Chief Justice—as having "laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and the Great Society . . . ."¹² I agree with Professor Karlan that the portion of the Court's ruling invalidating the expansion of Medicaid as going beyond the scope of the Spending Clause could indeed threaten important federal legislation. Still, it is worth noting that Justices Breyer and Kagan joined the conservatives to forge a 7-2 majority on that point,¹³ and so it remains possible that the ACA's Spending Clause holding will come to mark only an extreme outer limit—the existence of which the Court's leading precedents had long signaled.¹⁴

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Putting aside the Spending Clause, I am not nearly as pessimistic as Karlan about the likely impact of the Court's rulings on the taxing and commerce powers. Karlan frets that given the unpopularity of tax increases, a Congress that can only regulate through the taxing power "is a Congress with little power at all."¹⁵ Perhaps, but one should recall that on this point the Chief Justice joined his four more liberal colleagues in laying down the rule that Congress may use the taxing power even when it does not invoke the taxing power.¹⁶ And even the four conservative dissenters were prepared to sustain the individual mandate if it had been clearly labeled and more clearly structured as a tax.¹⁷ Karlan's worry, then, comes down to a prediction that Congress will lack the ingenuity to structure future mandates so that they are sufficiently tax-like to satisfy five Justices but not so tax-like as to offend the American people's anti-tax sensibility. That is ultimately a view about politics about which neither Professor Karlan nor I have any special expertise.

In any event, suppose that the ACA ruling really does foreclose future mandates because the Court has now ruled that Congress lacks the power to impose them directly and political forces prevent their imposition through the tax code. So what? For more than twenty-three decades after the ratification of the Constitution, Congress enacted no laws that clearly violated the no-mandate rule announced in the ACA case.¹⁸ It is therefore difficult to believe that the no-mandate rule will seriously hamstring future Congresses in achieving

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important national objectives of the sort it has previously achieved using the Commerce Clause. The ACA case was never very important for constitutional law; it was important because of its immediate political and policy ramifications, involving, as it did, a signature legislative accomplishment of a first-term President during a...