Julian Sanchez header image 2

photos by Lara Shipley

Yeah It’s Strange, but What’s So Strange About That

December 14th, 2010 · 34 Comments

Here’s how far down the rabbit hole we are. Josh Marshall writes:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

Tags: Law



34 responses so far ↓

  • 1 K.Chen // Dec 14, 2010 at 1:45 pm

    Yes and no. It isn’t just that our legal understanding of what qualifies as interstate commerce has stretched dramatically over the years. There is just a lot more commerce than there used to be an an ever greater scale, and a lot more of that commerce is interstate, and a lot more commerce is linked together.

    When I go to the fridge, there is a real chance my fruits and veggies not only came from another state, but also from another nation. Given the money and inclination, I could go from the South of California to the North of Maine in about 12 hours. Interstate commerce is a part of our daily lives in a way it has never been possible before.

    Add on top of that the simple fact that outside of the law, our knowledge about the essential inter-connectivity of people, whether in medicine or commerce, or the transmission of knowledge through that whole Internet thing. And economists have been steadily beating into our heads that all choices are economic. Its a different world than it used to be, and we think about it in a different way.

  • 2 Julian Sanchez // Dec 14, 2010 at 2:10 pm

    Excellent point; quite right.

  • 3 Julian Sanchez on the Commerce Clause | TightWind // Dec 14, 2010 at 3:20 pm

    […] Sanchez on the Commerce Clause December 14th, 2010 Julain Sanchez: But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of […]

  • 4 Sigivald // Dec 14, 2010 at 5:34 pm

    A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional

    Well, no one on his side, I guess. No one he listens to. No one he cares about.

    Because the idea was pretty god-damn commonplace elsewhere.

    A trivial web search reveals, eg, this, from 2009: “Sen. John Ensign (R-Nev.) filed a constitutional point of order against the legislation Tuesday, arguing that the mandate that all U.S. residents purchase health insurance or pay a penalty is unconstitutional.

    But what would a mere Senator know about the Constitutionality of a proposed law?

    (Actually, okay, that’s fair. Senators rarely seem to even consider it, but, still.

    No one, Mr. Marshall? No one?)

  • 5 Julian Sanchez // Dec 14, 2010 at 5:49 pm

    He clarifies in an update at the link that he meant “almost no serious legal scholars.” And if you read “was unconstitutional” to mean “would be likely to be found unconstitutional under controlling Commerce Clause precedent” he’s probably right.

  • 6 An Honest Question for Lefties | The Agitator // Dec 14, 2010 at 6:08 pm

    […] read Julian Sanchez on the healthcare mandate and the Commerce […]

  • 7 Freddie // Dec 14, 2010 at 6:52 pm

    What is not merely strange, but also morally corrupt, is that millions of people in this country suffer without health care access, and libertarians and conservatives are doing everything possible to derail the only serious attempts to ameliorate the problem, while providing no realistically actionable solution of their own.

  • 8 Julian Sanchez // Dec 14, 2010 at 7:58 pm

    I’m making offhand remarks about legal interpretation on a blog, actually. But work up a nice lather, it will make you feel good.

  • 9 Freddie // Dec 14, 2010 at 9:12 pm

    I’m not working up a lather. I have an opinion. My opinion involves my interpretation of morality. Morality has been worked out of the health care debate because bloggers and pundits socialize with each other, and it’s uncomfortable to go out for drinks with people after you tell them that you think their policy preference is immoral. I don’t have that problem.

    If that’s forbidden discourse around here, let me know. Personally, I’d appreciate a heads up about when you’re saying something you take seriously, and when you aren’t. I’m not smart enough to parse every one of your posts for when you are actually making a point and when you are making offhand remarks.

  • 10 Seth // Dec 14, 2010 at 10:57 pm

    K. Chen – I don’t believe more commerce has been the root cause of the interpretation of commerce clause over the past century.

    Freddie – Some libertarians believe that problems in the medical care market have been caused by progressive intervention by government and more intervention will lead to more problems that will lead to more intervention. I’d rather debate the merits of our policies than call each other names and put up straw men of the opponent’s position.

  • 11 Pithlord // Dec 14, 2010 at 11:28 pm

    No judge in Canada would interpret federal power over “Trade and Commerce” or “Peace, Order and Good Government” as broadly as post-1930s US courts have interpreted “Interstate Commerce”. Healthcare, in particular, is acknowledged as provincial jurisdiction. And yet we have universal state-funded medicine.

  • 12 K.Chen // Dec 15, 2010 at 12:32 am


    Care to expand on that? Regardless of whether the changing amount and degree of commerce is the root cause, surely you can acknowledge that reality has some bearing on the evolution of the law.

    And the health care market isn’t a market in most of the useful senses of the word. That again, has something to do with the reality outside of progressive government intervention. It isn’t the government that causes people to be willing to spend 20% of all the money they’ll ever spend on health care in the last two weeks of their life. It probably has to do how humans react to dying and the massive social pressures against saying “sorry mom/dad/patient, we’re not going to pay 20k to possibly keep you alive another two weeks.

    The growth of employer originated health insurance/care seems to be sensibly tied to economic pressures: specifically the enhanced bargaining power given to a collective group, and the need to compete for workers.

  • 13 Militant Libertarian » An Honest Question for Lefties // Dec 15, 2010 at 2:17 am

    […] First, read Julian Sanchez on the health care mandate and the Commerce Clause. […]

  • 14 MichaelnotMike // Dec 15, 2010 at 9:10 am

    “[A]lmost no serious legal scholars” suggests that he, and perhaps you, do not read Volokh.com, a blog run mostly by law professors. One wonders what, if any, research was done before making this statement.

  • 15 Indy // Dec 15, 2010 at 10:38 am

    The fundamental question remains. Either we have a limited, or unlimited government. If you believe “unlimited”, then just say so, and we’ll know where you stand. If you, instead, say “limited”, then the commerce clause gives Congress some power to do some things, but, at some point, it stops. So what is required is, in Justice Kennedy’s terminology, “a limiting principle.”

    A principle could be, for example, “Commercial parties in different states.” or even “some actual commerce – exchange between two or more parties” but since Wickard in 1942, that’s been out – and the standard shifted to federal authority to do anything covering any substance that *could be* exchanged, reaffirmed in Gonzales v Raich in 2005 – even if the substance is homegrown contraband for personal use.

    So the question remains, “What’s left?” What’s the remaining limiting principle that precludes omnipotent government in the name of the commerce clause? Very, very little.

    But I would ask those who claim to support limited government, but who think it’s preposterous that the health mandate lie beyond the reach commerce clause, to announce their own limiting principle – so we can see it and decide whether their proposed tiny shred of remaining prohibited government action is at all coherent or justifiable.

    My guess – it won’t be.

  • 16 Rob Ives // Dec 15, 2010 at 12:34 pm

    All that has to be done is to ask Freddie if something is moral or not. If he says it is, then clearly it is constitutional.

  • 17 K.Chen // Dec 15, 2010 at 1:02 pm


    I had a lengthy reply, but I’ll spare you. The short version is that Commerce Clause isn’t a limitation, its a grant, the limitations are found in the Amendments, so otherwise the grant goes as far as the underlying reality goes.

    And, putting aside the academic question that is interesting to law professors and amateur law professors world over, why get exercised over it? Social Security is essentially mandated retirement insurance. The more liberty friendly version of privatization would look even more like a mandate. A straight up tax of X and a refund of (X – cost of insurance plan or fine equivalent) would be unambiguously constitutional. Whatever power the commerce clause doesn’t reach, it only doesn’t reach because the several states still retain it. What I’m getting at here, is the actual contraction of liberty is exactly the same whatever clause, and whichever government it comes under. So what exactly is it that you’re complaining about?

  • 18 UserGoogol // Dec 15, 2010 at 3:28 pm

    I don’t think the commerce clause has anything to do with it, really. It seems like a fairly straightforward extension of the power to tax, and the income tax in particular. The mandate says that if you don’t buy health care, you are taxed 2.5% of your income. That is a tax.

    And more philosophically, the power to tax IS the power to mandate. Whenever the government taxes they are forcing people to pay for services. The only difference is that usually they’re required to pay the government itself. It seems bizarre that effectively giving people the additional option would make it unconstitutional. (Althuogh the law can be bizarre.)

  • 19 Indy // Dec 15, 2010 at 4:15 pm

    K. Chen’s reply to my comment is, I think, quite revealing. I’m not particularly exercised about this issue, but I do find it amusing that people are pretending to have some kind of logical or constitutional basis for what are clearly nothing more than their raw policy preferences – and that instead of merely being disappointed when a judge – in his vast discretion – rules against their side, they claim that it is contrary to some objective authority or case of reasoning.

    What I am complaining about is not the procedural mechanics of health-care transfers, but that people are lying about this in the cheapest manner of demagogic hypocrisy – appealing to the sacredness of a standard to which they themselves feel no loyalty when it is inconvenient. I would like to see them called on it. The easiest way to “call” someone on it is to explain the logical necessity of having a position (which I tried to do) – and merely insist that they articulate whatever “rules” they claim to be following besides pure politics. I submit that most people who are actually exercised about the mandate being struck in fact have no “limiting principle” rules and believe quite fervently in unlimited “energetic, activist” government in some realms, say “economic (whatever the constitution may say), and absolute prohibition of government action in other realms, say social, (again, whatever the constitution may say). That’s fine – they can just say so, that they don’t particularly care about adhering to “Liberal Constitutionalism” or a “Hierarchy of the Rule of Law” and quit wasting other people’s time with these silly non-discussions.

    For example, K. Chen has done an admirable job of concisely articulating – for lack of better or more accurate labels I’ll have to stick to the imprecise but familiar categories – the contemporary Liberal-Progressive Legal Scholar preferred view of Constitutional Interpretation: The enumerated powers in, for example, Article I, Section 8, are grants of power to the federal government broad enough to encompass almost all potential human activity, the only real limitations of which should be found in the explicit (or the implied penumbras of) restrictions in the language of Sections 9 and 10, and subsequent amendments.

    To the Conservative Scholars – The 9th amendment (and sometimes 10th too), however, make this view problematic, since it commands the judiciary to not interpret the constitution in this manner. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But the Conservatives often admit they aren’t able to turn this instruction into coherent law either, they tend to like to ignore it when it comes to war or crime, and, at any rate, there’s not exactly anyone out there to enforce that command if the Judiciary decides to overstep its bounds – whatever they might be.

    Neither side is particularly consistent on this score when it’s their ox being gored. For example – the ninth amendment was mentioned in Griswold (birth control), and frequently mentioned in Roe v. Wade. Now, where in the world did those judges get the idea that it was a decent and convincing legal argument as recently as the 19070’s to say that Congress was never granted the power to regulate birth control pills or abortion? Can we say that an “abortion” is *not* “commerce” when it is *clearly*, in most cases, an exchange of money for medical services? But at the same time say that a command to purchase a health insurance plan is within “commerce”?

    It’s incoherent. I’m not saying there is “a right answer”. I’m saying, at the moment, there is *no* good answer – and that few people care. I’m in a tiny minority that cares, not so much where it ends up, but that it end up *somewhere* that looks like actual constraining law, and not just a mish-mash of the residue of the politics of those who happened to be in a position to abuse their power the day an issue came up. Our jurisprudence, at the moment, is an illogical, inconsistent, nakedly-politicized mess, and almost all the players are hypocrites.

    But, that’s surely nothing new under the sun, and life goes on. I can always hope that, one day, a miracle happens and the precedents are somehow harmonized. One of the neatest things about this case – and the real reason I am following it eagerly – is that it is almost sure to make it to the Supreme Court where Justice Kennedy (we know how the others will vote, don’t we) will get the best chance in a generation to craft just such a harmony, to articulate himself, in his eloquent fashion, that “limiting principle” for which he has patiently longed. I bet he sees what’s coming, and he’s working on it right now.

  • 20 Indy // Dec 15, 2010 at 4:24 pm

    UserGoogol – is your position that the 16th Amendment means that the government is within its constitutional rights to mandate anyone to do anything, so long as they do it through the tax code, because “the power to tax IS the power to mandate.”? Would you support that result? And remember, the 16th is after the 14th – so any of those rights protected in the 14th amendment can be overridden by anything complying with 16th since the general rule favors the language that is latter in time.

    Look, that’s a fair and logically-consistent position to take, but I’d suspect almost no one shares it, and that nothing in the last century of our jurisprudence supports it. One of the questions that will be before The Court will inescapably whether your logic indeed has limits. They will certainly say yes – that the government cannot place any “undue burdens” on any “fundamental” right – not even through the awesome power of the income tax.

    But there’s sure a whole lot of leeway in what does or does not constitute the qualifiers “undue” and “fundamental”, isn’t there. Enough for The Court to go pretty much any way it wants to with plenty of plausible cover. Oh dear.

  • 21 Mike // Dec 15, 2010 at 4:28 pm

    I with Indy here. Any honest debate on this topic has to start with one question – is there (and was there intended to be) any constitutional limit at all to congressional power outside of the explicit enumerated list in the Bill of Rights? Because if there was(is), what is outside that limit if the healthcare mandate is inside it?

  • 22 UserGoogol // Dec 15, 2010 at 4:36 pm

    Indy: Well yeah, the power to tax is not completely unrestricted. But it forces people to spend money. My point is merely that the idea of “forcing people to buy things” is not really something new.

    The issue of undue burdens and such is whether forcing people to spend money on health care in particular violates some sort of specific right. Which might be a plausible argument to make, but it’s also a rather radical one judicially speaking. The government has been in the health insurance industry for a while. We’ve already been forcing people to pay for Medicare, forcing people to pay for private insurance seems like a rather tepid step from that.

  • 23 K.Chen // Dec 15, 2010 at 7:15 pm


    All constitutional interpretation is muddy and incoherent, and anyone who tries to tell you that their school is not is selling you something. Hell, Justice Scalia’s famous defense of originalism talked about how he’d simply abandon the intellectually rigorous position in respect to say, whipping. Chief Justice Rehnquist I believe it was once called what the majority was doing as exegesis, and we have all the passions and difficulties in legal analysis that, for example, the Christian churches have had over a couple thousand years trying to decipher the Christian Bible (or what goes in it). I have little reason to believe that its simultaneously accurate to accuse both sides of any particular schism of reading into the Bible their preferred understanding, and genuinely reading the Bible and gaining their preferred understanding from it.

    What I’m getting at, is what you’re pointing isn’t just craven, naked, hypocritical politics, its simply a manifestation of the human condition. And its one of those accusation we should be a little more hesitant to throw around, because discerning another’s intent and intellectual consistency can be its own difficult exegesis. It is of course, also impossible to fully defend against accusations of intellectual opportunism without knowing in some significant depth, a person, and how they think.

    I think there is a intellectually defensible understanding of the commerce clause that is fairly wide, even one significantly shorter than the broad Liberal Consensus whatever that might be. But that isn’t really the point at least not for you or I – because the question of the limitations of Federal power may not be nearly as fundamental as it sounds for those of us who are not governmental officers. “Can I?” may be an inferior question to “ought I?” Lawyers have to work around the “ought I?” and try to frame everything as “can I?” but there is no reason the rest of us have to follow along.

    Which is why I asked the question I did. What exactly is it that you’re worried about? Because that is the conversation that we should be having, and if it really is that our politicians aren’t serious enough about their Constitutional boundaries thats one conversation, if its about the threat of governmental erosion of liberty it is another.

  • 24 Seth // Dec 15, 2010 at 11:27 pm

    K. Chen, The commerce clause law didn’t evolve. The interpretation of it did. That change was driven not by expansion in trade, rather by a change in political philosophy in politicians and judges. Some want to abide by the law, some want to achieve their means and interpret the law to allow them to do that.

    There is a clear process to be used to evolve the Constitution in Article V and that has been used 27 times.

    I don’t accept your premise on health care. Of course it’s a market. For example, employer provided health insurance is tied to one thing – the tax advantage employers receive. No other economic pressure caused that. Remove that tax advantage and we could still form collectives if we so choose for bargaining,

  • 25 ah // Dec 15, 2010 at 11:42 pm

    If you take Julian’s argument to its logical conclusion, isn’t it the constitution itself and particularly state based federalism that are preposterous?

    In the modern world it makes no sense to base our government around states whose boundaries are arbitrarily drawn without regard to population or economics. It would be much more efficient to abolish all the states and set up local government on the basis of municipalities.

    But we can’t just wave a wand change our government so we have to use things like expanding the scope of the commerce cause in order to get things done.

  • 26 TGGP // Dec 16, 2010 at 1:06 am

    “the idea that buying health care coverage”
    Did he mean to write “not buying health care coverage”? Because the activity/inactivity distinction is rather central to the decision.

    Another weird thing is that under federal law, it is illegal to purchase insurance across state lines. So they’ve already mandated that all insurance is intrastate commerce.

    ah, I completely agree with you on municipalities. I just believe the national government is also superfluous.

  • 27 La Rana // Dec 16, 2010 at 1:57 am

    K. Chen has cogently stated the liberal (and for the most part, conservative) position on the meaning of the commerce clause. And with all due respect to our host, who finds it somehow compelling, it is a steaming pile of shit.

    Is the purchase of an insurance policy from an instate insurance company “commerce . . . among the several states.”

    Obviously not.

    Why then is it equally clear that it IS “commerce . . . among the several states” under SCOTUS jurisprudence since at least Wickard? Because SCOTUS fucked up (or violated their vow, depending on how you look t it).

    Passages of the Constitution, which we call operative propositions, cannot really be given direct effect. For example, the judiciary provides at least a minimal amount of deference to Congress’s legislative judgments and the executive’s executive judgments. The separation of powers concept requires this deference. To account for this deference (among numerous examples), the court, instead of enforcing the operative proposition, enforces a decision rule. The decision rule says, for example, that so long as the legislative had a rational basis for believing its act fell within its enumerated powers, the act is constitutional.

    With respect to the commerce clause, SCOTUS fucked up by adopting a decision rule that was so broad that it completely devoured the operative proposition. This decision rule, essentially adopted in Wickard, eviscerated the interstate limitation, and effectively made everything commerce. In so doing, SCOTUS gave congress the power to regulate everything.

    Why did they do this? Well, optimistically you could say they fucked up. But the better explanation is that unwittingly provided by K. Chen. The dramatic expansion of commerce, teh dramatic increase in connectivity, and moreso, dramatic possibilities that lie ahead, demand that Congress be able to regulate it comprehensively. If it was still 50 states running in each direction, there is no way America would have become the dominant economic superpower. There is no way we would be so interconnected and relatively seamless. Unfortunately, thats how the founders intended it.

    So, yeah, K. Chen is right. The modern “interpretation” is mandated by today’s world. Just don’t call it constitutional.

  • 28 Mike // Dec 16, 2010 at 6:57 am

    I am really curious which newly found federal powers you think made us a super power. As I had always seen it, that had more to do with a natural expansion of the economy and a “lucky” coincidence that left us the only untouched power after two major wars. We would have done that without entitlement programs, without FDR’s work programs, and without the drug war (offhand, the largest expansions of what is considered the purview of th federal government, at least by the courts). If you’re arguing that the expansion after the civil war was necessary, well, at least they bothered passing an amendment.

  • 29 Anthony Damiani // Dec 16, 2010 at 7:04 pm

    “So, yeah, K. Chen is right. The modern “interpretation” is mandated by today’s world. Just don’t call it constitutional.”

    But it is!
    It’s just that our (little-c) constitution derives from more than our (Big-C) Constitution.

  • 30 Seth // Dec 17, 2010 at 11:14 pm

    “The dramatic expansion of commerce, teh dramatic increase in connectivity, and moreso, dramatic possibilities that lie ahead, demand that Congress be able to regulate it comprehensively.”

    Yet commerce preceded states by thousands of years and enabled states to come into existence.

    Also, even if you believed this, Article V defines the process for amending the Constitution. That power is not reserved for judicial branch.

  • 31 southpaw // Dec 18, 2010 at 5:13 am

    “Several years since, in a discussion with one of the Senators from Massachusetts, before this fell spirit had showed itself, I then predicted that the doctrine of the proclamation and the Force Bill – that this Government had a right, in the last resort, to determine the extent of its own powers, and enforce its decision at the point of the bayonet, which was so warmly maintained by that Senator, would at no distant day arouse the dormant spirit of universal health insurance. I told him that the doctrine was tantamount to the assumption of unlimited power on the part of the Government, and that such would be the impression on the public mind in a large portion of the Union. The consequence would be inevitable. A large portion of the Northern States believed permitting millions of their fellow citizens to die without health insurance to be a sin, and would consider it as an obligation of conscience to abolish it if they should feel themselves in any degree responsible for its continuance, and that this doctrine would necessarily lead to the belief of such responsibility. I then predicted that it would commence as it has with this fanatical portion of society, and that they would begin their operations on the ignorant, the weak, the young, and the thoughtless, – and gradually extend upwards till they would become strong enough to obtain political control, when he and others holding the highest stations in society, would, however reluctant, be compelled to yield to their doctrines, or be driven into obscurity. But four years have since elapsed, and all this is already in a course of regular fulfilment.” -John C. Calhoun

  • 32 sac à main // Aug 26, 2011 at 3:25 am

    Welcome to http://www.replicabagsell.com .Our company was founded in 2004 and was committed to internet marketing businesses in 2006.

  • 33 yorutomo-gaido // Oct 2, 2012 at 3:00 am

    Great website, looks very clean and organized. And very interesting to read Your the article!
    This is very wonderful blog .i like this blog very much.

  • 34 smartestucdavisfan // Dec 6, 2013 at 5:22 am

    All that has to be done is to ask Freddie if something is moral or not. If he says it is, then clearly it is constitutional.