Imagine for a moment a sudden outbreak of smallpox (weaponized smallpox, if your taste runs to Jack Bauer-style scenarios). Airborne, highly contagious, deadly, it has the capability of spreading across the country and beyond in weeks, if not contained with a program of vaccination--vaccination not for a few, but for everybody, as soon as possible.
If Congress passed emergency authorization for the program, would you want a judge to block it? What if some citizens preferred not to be vaccinated? What if they promised Scout's honor not to get smallpox, or if they did, not to give it anyone else?
Would you want the judge to halt the program on the grounds that not getting vaccinated was "inactivity," and thus beyond Congress's power over "to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes?" Those who refused vaccination might act as reservoirs of the disease, and thus affect commerce. What if the judge conceded that point, but said Congress still couldn't reach them because they weren't voluntarily in the stream of commerce?
What if the judge blocked the program because Congress relied on private medical personnel to administer the vaccine? Congress could have created a program by which thousands of full-time federal employees would give the inoculations--that would be constitutional--but using non-employees made the program unconstitutional. Would that make sense?
While the disease spread, and hundreds or even thousands died, would you thank the judge for his fidelity to the pre-1937 vision of the Commerce Clause? Or would you think that, no matter what was written in the judge's order, the irretrievable spread of the epidemic really had affected commerce and should have been stopped?
These reflections were spurred by the decision Monday in the case of Virginia v. Sebelius, the lawsuit brought by Ken Cuccinelli, Virginia's right-wing zealot attorney general, to spare the uninsured of his state the indignity of government-funded health care. Judge Henry Hudson of the United States District Court for the Eastern District of Virginia agreed with Cuccinelli that the so-called "individual mandate" provision of the Act exceeds the Commerce Clause because it seeks to "compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
For those of you scoring at home, currently it's Affordable Health Care Act 2, right-wing opponents 1. Two federal district courts have upheld the program; Judge Hudson is the first district judge to hold against it. That's neither here nor there--the final score will almost certainly be a best-of-nine championship series played here in Washington at the Supreme Court. But it does underline that the issues in the case are close. The weight of academic opinion so far supports the Act, but some of the very brightest (and perhaps not coincidentally most conservative) of my colleagues disagree.
Readers would do well to discount the importance of Judge Hudson's decision, which is about as significant as an early NBA playoff game. And partisans might nurture the Christmas spirit by refraining either from the right-wing spike dance or the progressive chant of "You're blind, ump!" These are hard issues; federal judges, by and large, don't ask for these cases to land in their courtrooms. Having read the opinion, I see nothing in it to suggest that Judge Hudson is not doing his duty to construe the statute as he reads it, compare it with the Constitution as he understands it, and announce whether the two go together. His opinion was respectful to both sides and--in stark contrast to the intemperate earlier interim decision of Senior Judge Robert Vinson of a Florida district court--devoid of inflammatory rhetoric, judicial triumphalism, or talk-radio style taunting. No one can seriously argue that the judge did not earn his salary.
I do think, however, that Judge Hudson's opinion is wrong. Grievously wrong. Threat-to-the-nation-from-rampaging-smallpox wrong.
Here's why I think so. The argument that "inactivity" is beyond the reach of the Commerce Clause sounds reasonable. That's because, like most serious fallacies, it's half true. Last summer, Sen. Tom Coburn asked Supreme Court nominee Elena Kagan whether Congress could require individuals to eat vegetables three times a day.
The cheeky Kagan responded, "Sounds like a dumb law." And a law that requires eating vegetables (or joining a gym, or subscribing to a newspaper) really is a dumb law. There is no overarching national necessity behind it. It's hard to imagine Congress claiming with a straight face that vegetable portions were an emergency, or that they needed to be regulated as part of a comprehensive scheme.
That's the answer to those who will shortly post below that "'Professor Epps, if that is really what he is, clearly believes Congress can regulate all human activity." (Good to see you guys again, by the way.) Congress can't regulate everything; what it can regulate is everything that needs to be reached as part of a comprehensive scheme required by a necessity that affects the nation.
Health care is such a necessity. Before Republicans hit upon the argument that health care isn't part of commerce, they harped for years on the dangers of regulating "one-sixth of the economy." After years of debate (more than half a century in fact) and extensive fact-finding, Congress decided that health care could only be provided effectively through a nationwide program.
Ironically, Republican opponents concede that if Congress had passed a mandatory program funded by payroll and income taxes--a kind of Medicare for all ages--their challenge would have no merit. (In case the supple Cuccinelli later decides to reverse field, I personally saw him say this on October 21, 2010, at the Washington Legal Foundation.) Those taxes would of course be no less compulsory than the "mandate." But Congress' partial reliance on the private market (which in other contexts Republicans rhapsodically defend) somehow guts the nation's power to solve its health care problem.
Well, everybody's got to have an argument, and the right has settled on this one. But conservatives should be careful what they wish for. Every constitutional decision is to be weighed not only (or even primarily) by the specific facts at issue, but by the potential mischief of the precedent that will be set. A decision voiding the health care act would strike at the heart of our nation's ability to deal with situations like my smallpox hypothetical.
Wait a minute, you say, health care regulation isn't like a smallpox epidemic. No? Certainly health care is a life-or-death issue for millions of Americans, including many who will be insured under the Act but will fall through the cracks in the current system. Who could seriously claim that the 50.7 million people who currently have no health care do not constitute an emergency?
A judge, to strike down the Act, must conclude that no reasonable Congress could have concluded that the situation needed nationwide, comprehensive regulation. And that no reasonable Congress could have concluded that the "mandate" is a key part of a comprehensive scheme to ensure near-universal coverage. Because if both those things are true, then the "inactivity" of refusing to take prudent care to prepare for an individual's health care needs is as potentially damaging as the "inactivity" of refusing needed vaccination at a time of epidemic.
What if these "inactive" individuals promise will really never, never, contract a catastrophic sickness or suffer a devastating injury, that neither they nor their children will ever, ever appear in an emergency room as uninsured patients? That rings as hollow as my hypothetical objectors' promise not to get or spread smallpox. These things aren't voluntary; taxes, sickness, death--you can't opt out, no matter how you try. And, I'm sorry to the hard-core libertarians out there, you cannot agree to waive life-saving care for your children. That argument was over long ago.
The "inactivity" argument depends on the idea that the Constitution prohibits the United States from running a modern economy, in which all of us are involved by virtue of our membership in the nation. As in any highly industrialized nation, we're all in this together. And if we adopt an old-fashioned minimal view of national authority, we will have confirmed that 21st century America has chosen decline over economic leadership.
I make no predictions. Judge Hudson's logic may very well prevail--especially if the conservative majority of the Supreme Court, a year or two hence, cannot resist the temptation to deliver a knockout blow to a president they despise. But such a decision would sow mischief in at least two ways. First, stripping this country of its first modern health care system would deform the Constitution, set back the cause of effecting legislative self-government, and spread suffering over decades or even generations.
That may not matter so much to those who make the decision. Federal judges, like state attorneys general, are covered by generous health-insurance programs, and may not feel the whole thing is such a big deal. And our current Justices make no secret of their seething contempt for America's legislature.
But if history teaches us anything, it teaches that emergencies come like thieves in the night, and that when they do, we look to government to step in. A strong nation preserves the tools it may need to avert disaster. Throwing those tools away would be an even greater mischief.
If the United States finds Congress's powers gutted because of this
partisan dispute, we will one day have reason to regret it.