Last year’s Supreme Court decision on the constitutionality of the Affordable Care Act was one of the most controversial cases in American history.  In NFIB v. Sebelius, a narrow 5-4 ruling, the Court upheld the ACA’s individual health insurance mandate on the grounds that it was a constitutionally permissible tax, but rejected the federal government’s central arguments in defense of the mandate: the claim that it was authorized by Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. The mandate, which requires most Americans to purchase government-approved health insurance by 2014, was the central focus of challenges to the constitutionality of “Obamacare” mounted by 28 state governments and numerous private parties.

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial  is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions.

Throughout the legal battle over the individual mandate litigation, the federal government’s main argument was that the mandate is constitutional because it is an exercise of Congress’ powers under the Commerce Clause, which gives it the authority to regulate “Commerce… among the several states.” The plaintiffs suing to overturn the mandate argued that the Clause only allows Congress to regulate preexisting “economic activity,” but not to impose mandates on people merely because they happen to be living in the United States. Failure to purchase health insurance is not commerce or economic activity of any kind. The plaintiffs also argued that the Supreme Court had never upheld a congressional mandate on inactivity under the Commerce Clause, nor had any previous federal law imposed such a mandate.

Most observers were surprised when a majority of the Court ultimately rejected the federal government’s Commerce Clause argument, but Chief Justice John Roberts saved the mandate by endorsing the much weaker argument that the mandate could be construed as a tax authorized by Congress’ power to impose taxes.

Was the Obamacare Mandate Justified by 1790s Precedents?

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen.”

In Obamacare on Trial, Elhauge reprints several of his earlier articles emphasizing these two acts, and argues that the federal government’s Commerce Clause argument might have been more successful before the Supreme Court if only the Justice Department had focused on them in its briefs. This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts and the health insurance mandate.

The 1792 Milita Act was obviously not enacted under Congress’ power to regulate interstate commerce at all, but under its power to “provide for organizing, arming, and disciplining, the Militia.” Elhauge contends that if Congress can impose mandates on “inactivity” under the Milita Clause, it can do so under the Commerce Clause, as well. But that doesn’t logically follow. The two clauses are worded very differently.  One gives Congress a general power to “provide for… arming” the militia, not a power to regulate some preexisting activity. By contrast, the other is a power to “regulate… Commerce,” which implies that its reach is limited to preexisting commercial activity.  Had the Constitution given Congress a general power to “provide for” the establishment and support of commerce, Elhauge’s analogy would have been stronger.

Moreover, a power to mandate activities needed to arm and train the militia has very different implications from a power to mandate any activity that might have an effect on commerce. The former only allows a fairly narrow range of mandates. The latter would allow virtually any mandate of any kind, since almost any such mandate would have effects on the economy. If Congress’ Commerce Clause authority were that sweeping, the Militia Clause and many of Congress’ other enumerated powers would be superfluous. After all, the arming and training of the militia inevitably has effects on interstate commerce, including the market in arms.

The 1798 Act for the Relief of Disabled and Sick Seamen was also very different from the individual health insurance mandate. Far from being a regulation of inactivity, it directly targeted international commerce in the narrow sense of the word; the Commerce Clause gives Congress the power to regulate commerce with foreign nations as well as interstate commerce.  The Act imposed obligations only on owners of ships that have just docked at an American port after arriving from a foreign one. That is a far cry from a mandate imposed on the basis of being a permanent resident of the United States. In addition, as David Kopel pointed out back in 2010, the 1798 Act is structured as a kind of tax on the wages of seamen, and did not actually require the seamen to purchase anything with the money. As such, it could more easily be defended under Congress’ power to tax than the individual health insurance mandate.

Even if the 1798 Act were more analogous to Obamacare mandate than it actually was, it would be a mistake to view it as a strong indication of the meaning of the Commerce Clause.  Congress all too often enacts legislation with little or no regard for constitutional limits on its authority. And Congress was no paragon of constitutional virtue in the late 1790s. In the same year that it enacted the Act for the Relief of Disabled and Sick Seamen, it also passed the notoriously unconstitutional Alien and Sedition Acts.

Given the many differences between the  two 1790s acts and the Obamacare mandate, it is highly unlikely that the Justice Department would have done any better stressing these “precedents” than by focusing on the arguments that it actually emphasized: that Congress has broad power to impose “economic” regulations and that the health insurance mandate is a special case that could not be used to justify an infinite range of other mandates. It is difficult or impossible to find any legal commentator who concluded that the individual mandate is constitutional based on Elhauge’s analysis of the two 1790s laws, but had not previously reached the same conclusion on other grounds. Quite possibly, Obama administration lawyers chose not to focus on these two acts because doing so would not have increased their chances of winning.

Searching for Limits

Throughout the individual mandate litigation, the federal government struggled to address the plaintiffs’ claim that its rationale for the insurance mandate would justify virtually any other mandate. For example, the same argument used to justify the individual health insurance mandate – that it was an “economic” regulation with effects on interstate commerce –- could be used to justify a law forcing people to purchase any other product, such as broccoli. A broccoli mandate would clearly have economic effects, and could even improve our health, since broccoli is good for you. Ultimately, the federal government’s failure to articulate a coherent limiting principle for the scope of congressional power was a key reason why five justices rejected its Commerce Clause argument.

Elhauge advances two major responses to this slippery slope problem, responses that are in some tension with each other. On one hand, he argues that a decision upholding the mandate is compatible with meaningful limits on congressional power. On the other, he contends that there is no reason for concern because previous precedents already allowed Congress to impose almost any purchase mandate. Neither line is particularly persuasive.

Elhauge argues that, under his theory, a law authorized by the Commerce Clause “must (1) involve economic regulation (2) that addresses a national problem [and] (3) that affects interstate commerce.” But these supposed constraints don’t actually exclude anything. If the health insurance mandate “involves economic regulation,” so too does any other mandate that requires us to buy or use  any product, or engage in any activity that affects the economy.  The latter includes virtually any activity of any significance. A requirement that people wake up early and exercise regularly surely qualifies, since such habits make people healthier and more economically productive. Similarly, almost any policy concern can be characterized as a “national problem,” including the problem of obesity and unhealthy eating that might be alleviated by a broccoli mandate. Finally, virtually any mandate to purchase a product or do anything with economic effects surely “affects interstate commerce.”

Elhauge suggests that a federal ban on carrying guns in school zones (invalidated by the Supreme Court in United States v. Lopez (1995)), would fail his test. But such a restriction on the transportation of a commodity  clearly “involves economic regulation,” addresses the “national problem” of violence in schools, and has at least some effect on interstate commerce – all points made in  Justice Stephen Breyer’s Lopez dissent. The key reason why the Lopez majority ultimately rejected Breyer’s arguments is that carrying a gun in a school zone is not “economic activity,” and therefore not covered by the Commerce Clause. But, of course, the same can be said of failure to purchase health insurance.

Elhauge’s argument that we have already reached the bottom of the Commerce Clause slippery slope is more potent. As he points out, previous decisions gave Congress the power to regulate almost any “economic activity.”  Congress could potentially use those precedents to impose almost any purchase mandate simply by “limiting” the mandate to those people who have engaged in some sort of economic activity, such as buying food at a supermarket.

In my view, this point is a better argument for overruling or limiting previous decisions such as Gonzales v. Raich  than for upholding the individual health insurance mandate. But allowing wide scope for mandates tied to economic activity is not as far-reaching as giving Congress unconstrained power to impose mandates without such links. From Congress’ standpoint, mandates tied to economic activity have the disadvantage of disincentivizing that activity. The more onerous the mandate is, the greater the disincentive. They also tend to antagonize interest groups that profit from whatever economic activity is being burdened.

Conclusion

Although Obamacare on Trial is a thoughtful defense of Elhauge’s distinctive take on the mandate litigation, it gives short shrift to several other important aspects of the case. For example, Elhauge argues that the mandate is authorized by the Necessary and Proper Clause as well as the Commerce Clause. But he fails to consider the point that a mandate authorized by that Clause must be “proper” as well as “necessary” for “carrying into Execution” other powers granted to the federal government in the Constitution.  That is the key reason why the Necessary and Proper Clause rationale was rejected by a majority of the Court.

Similarly, Elhauge contends that we need not worry that a decision upholding the mandate would lead to abusive federal mandates because state governments already have unconstrained authority to impose mandates, yet supposedly have not abused it very much. That claim ignores the long history of abusive state mandates, including numerous states that required adult males to engage in forced labor during the 19th and early 20th centuries, a practice mistakenly upheld against Thirteenth Amendment challenge in a 1916 Supreme Court decision. To the extent that states are indeed unlikely to adopt abusive mandates, it is in large part because people and firms can “vote with their feet” by exiting states that do so. Escaping the reach of the federal government is a much tougher proposition.

Elhauge also devotes little attention to the Tax Clause  reasoning under which Chief Justice Roberts ultimately upheld the mandate. And he devotes almost none at all to the many arguments against that conclusion, including those endorsed by every lower court that considered the issue.  Like most other observers (myself included), Elhauge might not have expected that the tax argument would play such a decisive role in the outcome.

These and other omissions are understandable in light of the fact that the book is only 77 pages long (not counting an appendix reprinting Chief Justice Roberts’ opinion in NFIB) and consists in large part of reprinted articles and op eds written before the Court’s decision was issued. Elhauge had little time to add additional material between June 28 and the date the book was published. Overall, Obamacare on Trial is a thought-provoking contribution to the debate over the individual mandate case. But its limitations prevent it from becoming the definitive work on the subject, or even the definitive defense of the case for the mandate’s constitutionality.

Ilya Somin is a Professor at George Mason University School of Law. He wrote an amicus brief in support of the plaintiffs in the individual mandate case, on behalf of the Washington Legal Foundation and a group of constitutional law professors.