The individual mandate, sovereignty, and the ends of good government: a reply to Professor Randy Barnett.

• Author: Brennan, Patrick McKinley
• Position: New York University Journal of Law & Liberty, vol. 5, p. 581, 2011

INTRODUCTION I. SETTING THE CONSTITUTIONAL DOCTRINAL CONTEXT II. MULTIPLYING SOVEREIGNS III. MAKING SOME SENSE OF SOVEREIGNTY IV. TRANSFORMING THE POLITICO-LEGAL CULTURE AWAY FROM COMPETING "SOVEREIGNS" V. QUESTIONS MORE FUNDAMENTAL THAN ASSERTIONS OF "SOVEREIGNTY" INTRODUCTION

People who are politically "conservative" or "libertarian" in the way those terms are often deployed in contemporary American public discourse almost universally regard the Patient Protection and Affordable Care Act (PPACA) (1) as objectionable and, in a related but distinct vein, unconstitutional. The favorite focus of such conservative and libertarian protest is the Act's so-called individual mandate--the requirement that individuals buy health insurance from a private market. (2) As of the time of writing, federal district courts in Florida and Virginia have held the Act unconstitutional on account of the individual mandate. (3) In each case Republican presidents had appointed the district judge. (4) The two district judges that have upheld the Act against constitutional challenge (5) were appointed by Democratic presidents. (6) Regardless of whether one approaches the issue from the right, the left, or the middle, however, the individual mandate merits a hard look: a statutory requirement that an individual spend his or her money on health insurance unsettles many entrenched American moral, political, and legal expectations. Whether this requirement does so for good or for ill remains to be seen.

The conservative and libertarian objections to the individual mandate implicate some of the deepest and most contested questions concerning our Constitution, constitutionalism in general, and the relation of positive law--including constitutional law--to the ends of good government. It is no exaggeration to say that it even implicates questions about who we are. Professor Randy Barnett has recently argued that the mandate raises questions about the sovereignty of "We the People." (7) Specifically, Barnett contends that the mandate is unconstitutional because it violates the people's sovereignty by "commandeering" them into buying health insurance. (8) Why, one must therefore ask, is it wrong for a government to commandeer its own people?

The Oxford English Dictionary (OED) first defines commandeer as "to command or force into military service," (9) which is not something the Act assays. The OED further defines commandeer as "to take arbitrary possession of." (10) But who can possibly contend that the individual mandate, whatever its perceived merits or demerits, is an "arbitrary" act by Congress? It was instead deeply deliberate. Perhaps Barnett's objection is better phrased as the government commanding citizens to take this particular action? Is it not, however, part of the essential function of government to command people on certain matters?

In what follows, I will suggest that Barnett's position depends upon a reading of our moral, political, and legal traditions of understanding that is both debatable and, in fact, mistaken. I will suggest, moreover, that as we gradually make and remake American politico-legal culture, as we necessarily do from one season to the next, we would do best to acknowledge and live within a creative tension regarding the work required of the civil ruling authority. This paradigm requires, in turn, foregoing the cheap fictions of sovereignty that, alas, stud contemporary and historical Supreme Court jurisprudence.

Why a "creative tension?" On the one hand, we cannot reasonably assume that the government that governs least is best; government can deliver some important human goods more efficiently, and there are still other goods that government alone can provide. On the other hand, we cannot reasonably presume that government can solve all problems; there are some human goods that individuals or private groups can better or uniquely achieve. The nature and extent of government action properly vary across time and circumstance, and thus, so do the very forms of government itself. Always, however, determining what role government should play in particular times and places precludes absolutism--the absolutism of imagined popular, individual, or state "sovereignty." This determination also precludes the stealth absolutism of some forms of "originalism" in constitutional interpretation.

1. SETTING THE CONSTITUTIONAL DOCTRINAL CONTEXT

   The individual mandate invites constitutional scrutiny on any number of grounds, but the focus here will be its constitutional status vis-a-vis the Commerce Clause in conjunction with the Necessary and Proper Clause. The focus, more specifically, will be its status under the Commerce Clause as currently construed. (11) As such--with a possible exception to be noted below--the mandate must be sustainable, if at all, as a regulation of economic activity that works a "substantial effect" on interstate commerce. Under United States v. Lopez, (12) there are

   three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect inter state commerce. (13) Plainly, if the individual mandate is sustainable under the Commerce Clause, it would be thanks to the third prong of the Lopez test--regulation of activity that has a "substantial effect" on interstate commerce.

   Unlike the first two prongs of the Lopez test, the substantial effects test is not, according to Barnett, the product of an interpretation of the Commerce Clause. (14) Rather, according to Barnett, the substantial effects test is correctly interpreted as an application of the Necessary and Proper Clause "in the context of the regulation of interstate commerce." (15) While others view the matter differently--believing that the Court has expanded the very meaning of "commerce" since the New Deal (16)--I will simply stipulate to Barnett's position here. The presence of the Necessary and Proper Clause as a link in the chain of argument provides Barnett with the textual predicate for his argument: the individual mandate is unconstitutional because it violates our sovereignty'.

   According to Barnett, a regulation of economic activity is constitutionally permissible provided that it is both necessary and proper. (17) If one were to treat "necessary" and "proper" either as a unit or as an instance of pleonasm, what is necessary would also necessarily be proper. If each word is given its own meaning, however, what is necessary must also be proper to withstand a challenge to its constitutionality. (18) Barnett makes a strong case for giving each word its own bite. (19) In Barnett's view, there are right ways (proper) and wrong ways (improper) of regulating those activities that have a substantial effect on interstate commerce (necessary). (20) I will say more shortly about the demands of "proper," but first there is a further reason why this question that so rarely gets asked What is "proper" regulation?--is apt.

   That further reason involves a legal argument that seems to be picking up steam, though it still lacks a majority vote in recent Supreme Court jurisprudence. While conditionally conceding that the mandate must meet the "economic activity" test of Lopez and its progeny, some proponents of the mandate have also recently defended it on an alternative ground. Specifically, they contend that although not itself regulation of an economic act, the mandate is nonetheless constitutional because it is part of a larger regulatory scheme that is necessary and proper to the regulation of interstate commerce. (21)

   These proponents have on their side not only dicta and implicatures of Lopez itself, but also language from the majority opinion of the more recent case Gonzales v. Raich. (22) Additionally, Justice Scalia explicitly developed this theory in his concurring opinion in the same case: "As we implicitly acknowledged in Lopez ... Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce." (23)

   Although the Court has yet to adopt Justice Scalia's theory that Congress's power to regulate is not confined to economic activity, one can reasonably question how the individual mandate would fare under Scalia's theory. If one concedes that the mandate itself is not a regulation of economic activity but is nonetheless "necessary" because it is essential to a broader scheme of regulation of interstate commerce, then there remains a further question to be asked: is it a "proper" means by which Congress may exercise its power over interstate commerce? According to the enduring test set out by Chief Justice Marshall in McCulloch v. Maryland: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (24) As parsed by Barnett, this sentence establishes that a means is proper when it is, first, not prohibited and, second, otherwise consistent "with the letter and spirit of the constitution." (25)

   Accepting for present purposes this understanding of the requirements of what it means to be "proper," is the individual mandate proper? Assuming it is not forbidden, does it yet "consist with the letter and spirit of the constitution?" (26)

   In order to establish that it does not so consist, Barnett next invokes the...