D.C. Circuit finds no significant limit on commerce power

With the D.C. Circuit’s decision this week in Susan Seven-Sky v. Eric Holder, the Obamacare table is finally set for the Supreme Court. Most Supreme Court watchers expect the Court to review, before the end of its current term, at least one of the several appellate court decisions on the constitutionality of the so-called “individual mandate.”

With the D.C. Circuit’s decision, the score is 2-1-1. The 6th and D.C. Circuits have found the law constitutional. The 11th Circuit has held that it is unconstitutional. And the 4th Circuit declined to review the issue for lack of standing on the part of Plaintiff Commonwealth of Virginia. Now that they are ahead on points, the Obama administration and defenders of the Patient Protection and Affordable Care Act are celebrating the D.C. Circuit ruling as a victory that will encourage the Supreme Court to uphold the law. But a careful reading of Judge Laurence Silberman’s milquetoast opinion could give them pause.

For starters, Silberman acknowledges the government’s concession that the mandate to purchase health insurance is unprecedented and that it (the government) can identify no limits on Congress’s power to require the purchase of other products or services. Nevertheless he seems to accept the government’s argument that the absence of precedent should not trouble us because the health care market is unique. It is unique, he reports, because virtually everyone is certain to participate sooner or later and because it is a market “where declining to buy a product disproportionately causes a national economic problem.” But it is not unique in the first sense — everyone participates in the food, housing and transportation markets as well, and it is not clear what it means to say that a failure to purchase health insurance “disproportionately causes a national economic problem.” Disproportionate to what?

In response to plaintiffs’ argument that the commerce regulation power does not extend to regulating inactivity, Silberman states that “[n]o Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.” In light of his earlier acknowledgment that the regulation of inactivity is unprecedented, it is not surprising that there is no Supreme Court precedent holding that the commerce power is limited to regulating activity. The question of regulating inactivity has never before been considered by the Court. Indeed, given that the regulation of inactivity is unprecedented, had an earlier Supreme Court addressed the question it would have been pure dicta and would violate the Court’s general rule against offering opinions on abstract questions.

True to his roots as a Reagan nominee to the bench, Silberman looks to both text and framer intent, but he fares poorly in applying both of these interpretive theories to the question before the court.

Article I, Section 8 of the Constitution grants Congress the power to “regulate commerce.” According to a framer-era dictionary, reports Silberman, “regulate” means “direct,” and “direct” means “to order; to command.” The individual mandate is an order or command requiring action and “nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor is the term ‘commerce’ limited to only existing commerce.” So, concludes Silberman, “[t]here is therefore no textual support for appellants’ argument.” But this argument runs exactly counter to the textualist’s basic premise that what is not expressly included is excluded. By Silberman’s logic, what is not expressly excluded is included.

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