Virginia v. Sebelius

Wed Dec 15 10:28:46 PST 2010

I so rarely find myself in agreement with libertarians, but this seems to be something of an exception.  As a predictive matter, I quite agree with Professor Bernstein that the outcome here will turn on the ability of the mandate's advocates to convince the Court that their theory does not give rise to effectively plenary federal power -- given Justice Kennedy's position in Lopez and Morrison, that seems clear to me.  I very much doubt as well that a majority will be willing to uphold this provision as a tax when Congress was unwilling to pay the political price of calling the measure a tax when it was enacted.  As a doctrinal matter, it seems equally clear that whatever the defects of the act/omission distinction in other contexts, when considering a text that authorizes Congress to regulate "commerce," there is a more than plausible basis to distinguish between acts and omissions.  That is reason enough to distinguish Wickard and Raich.

To my eye, the strongest defense for the mandate is under the Necessary and Proper Clause.  The challenged legislation contains a number of regulations of the insurance industry that are uncontroversial under contemporary doctrine, but which could increase the cost of insurance.  To ameliorate the cost pressures created by this exercise of the commerce power, the individual mandate broadens the size of the risk pool.  Under contemporary doctrine applying the Necessary and Proper Clause (e.g., Comstock), it strikes me that there is quite a strong argument that this effort to avoid adverse consequences from an otherwise constitutional exercise of the commerce power should be sustained.

What I find most interesting is the reluctance of most advocates of the mandate to acknowledge the problems with reliance on the commerce power, and instead to embrace this type of argument.  My guess is that this reluctance is ultimately bottomed on a distrust of the current majority of the Court, which counsels, in the view of most advocates, for a position that insists that the Court "has to" uphold the mandate by virtue of the precedential weight of Wickard, Raich, and the other modern commerce power precedents.  I learned long ago that those who tell a court it has to do anything are likely to come to a bad end, and nowhere is that more true than in the United States Supreme Court.  That may be what happens to the advocates of the mandate as well, at least as long as they insist that all one needs to sustain the mandate is Wickard, Raich, and the other modern commerce power precedents.

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
Sent: Tue 12/14/2010 4:20 PM
To: Curtis, Michael K.
Cc: CONLAWPROFS professors
Subject: Re: RE: Virginia v. Sebelius

The existing precedents apply congressional regulatory authority to "activity," especially "economic activity." The activity-inactivy is an interpretation of the present case law. If we want to go outside the case law and go back to first principles, I'm more than happy to do so. I think such a move would make the anti-mandate case much stronger rather than weaker.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8124
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

----- Original Message -----
From: "Curtis, Michael K." <curtismk at wfu.edu>
Date: Tuesday, December 14, 2010 7:15 pm
Subject: RE: Virginia v. Sebelius

> Two forms of economic action--buying health insurance (for those who
> can, don't have pre-existing conditions making the cost too high, etc)
> and deciding not to do so--there is always the ER, etc..  From an
> economic perspective,  both have huge effects on the health care
> market.The larger regulatory plan requires something close to
> universalparticipation to work as set out.  Of course one can say
> that not buying
> health insurance is inactivity and that economic inactivity can't be
> regulated to make a larger regulatory plan work.  Why this is so
> is far
> from clear to me.   If the regulation can be justified as
> necessary and
> proper under the commerce power, why cannot the things necessary
> to make
> it work be regulated, even if activity is required.
>
>
>
> Michael Curtis
>
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Glenn Phelps
> Sent: Tuesday, December 14, 2010 5:21 PM
> To: Ilya Somin
> Cc: CONLAWPROFS professors
> Subject: Re: Virginia v. Sebelius
>
> Selling wheat is an economic activity.  NOT selling 
> wheat....ummmm...nevermind:)   SEE Wickard v Filburn
>
>
> On Dec 14, 2010, at 3:15 PM, Ilya Somin wrote:
>
> > Buying them is an economic activity. NOT buying them is not.
> >
> > Ilya Somin
> > Associate Professor of Law
> > Editor, Supreme Court Economic Review
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8124
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> > SSRN Page: http://ssrn.com/author=333339
> >
> >
> > ----- Original Message -----
> > From: Malla Pollack <mallapollack3 at gmail.com>
> > Date: Tuesday, December 14, 2010 5:06 pm
> > Subject: Re: RE: Virginia v. Sebelius
> >
> >> Why isn't buying medical services an economic activity?
> >> Malla
> >>
> >> On Tue, Dec 14, 2010 at 4:03 PM, Ilya Somin <isomin at gmu.edu> wrote:
> >>
> >>> The relevant compulsion is a regulation of economic activity -
> >> in this case
> >>> working for the unionized firm. That's different from a
> >> compulsion that
> >>> doesn't regulate any preexisting economic activity (like the
> >> individual> mandate).
> >>>
> >>> Ilya Somin
> >>> Associate Professor of Law
> >>> Editor, Supreme Court Economic Review
> >>> George Mason University School of Law
> >>> 3301 Fairfax Dr.
> >>> Arlington, VA 22201
> >>> ph: 703-993-8069
> >>> fax: 703-993-8124
> >>> e-mail: isomin at gmu.edu
> >>> Website: http://mason.gmu.edu/~isomin/
> >> <http://mason.gmu.edu/%7Eisomin/ <http://mason.gmu.edu/~isomin/> >> SSRN Page:
> >> http://ssrn.com/author=333339>
> >>>
> >>> Persons not wanting to join a union but part of a certified
> >> bargaining> unit are sometimes (states consenting) required to pay
> >> representation fees
> >>> for services rendered.
> >>>
> >>>
> >>>
> >>> Isn't that a compulsion to purchase the services of a union?
> >>>
> >>>
> >>>
> >>> rt
> 