A mandate for mandates: Is the individual health insurance case a slippery slope?

Law and Contemporary Problems

Volumn 75, Issue 3, 2012, Pages 75-106

  Somin, Ilya ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 84861898203     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (128)

1. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26 and 42 U.S.C.).
2. 26 U.S.C.A. § 5000A (West 2010).
3. For some of the most important cases challenging the mandate, see decisions cited in notes 4, 5, and 14
4. See, e.g., Randy E. Barnett, Op-Ed., If Obamacare's Mandate is Approved, Congress Can Require Anything, WASHINGTON EXAMINER, June 6, 2011, available at http://washingtonexaminer.com/opinion/op-eds/2011/06/if-obamacares-mandate-approved-congress-can-require-anything (arguing that upholding the mandate would lead to unlimited congressional power to impose mandates).
5. Ilya Somin, Why the Individual Health Care Mandate is Unconstitutional, THE JURIST (May 4, 2011), http://jurist.org/forum/2011/05/ilya-somin-mandate-is-unconstitutional.php (same).
6. Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1289 (N.D. Fla. 2011), aff'd in part, rev'd in part sub nom. Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011).
7. See Florida ex rel. Att'y Gen, 648 F.3d at 1328 (holding that "[t]his economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority"); Florida ex rel. Bondi, 780 F. Supp. 2d at 1286 (striking down the mandate in part because "[i]f it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting-as was done in the Act-that compelling the actual transaction is itself 'commercial and economic in nature, and substantially affects interstate commerce, it is not hyperbolizing to suggest that Congress could do almost anything it wanted'") (citations omitted); Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 781 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011) (striking down the mandate in part because "the same reasoning [used to defend the mandate] could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation."). For the only decision striking down the mandate without citing slippery slope concerns, see Goudy-Bachman v. U.S. Dep't of Health & Human Servs., 811 F. Supp. 2d 1086, 1103 (M.D. Pa. 2011) (rejecting such concerns because the holding of a decision expanding congressional power to cover the individual mandate would be "limited" and because "an informed electorate would not countenance frivolous mandates").
8. 198 U.S. 45, 64 (1905) (invalidating a maximum-hours limitation on grounds that it violated freedom of contract).
9. See, e.g., Erwin Chemerinsky, Political Ideology and Constitutional Decision-Making: The Coming Example of the Affordable Care Act, 75 LAW & CONTEMP. PROBS., no. 3, 2012 at 1, 13-14 (arguing that a decision striking down the mandate would put at risk various civil-rights laws and economic regulations, and concluding that the invalidation of the Affordable Care Act likely will lead to other laws being vulnerable).
10. Mark Hall, Commerce Clause Challenges to Health Reform, 159 U. PA. L. REV. 1825, 1829 (2011) (arguing that a decision striking down the mandate would remove "authority under the commerce power to compel purchases or other actions [that] could well be essential to combat a horrifically lethal pandemic").
11. Wilson Huhn, Constitutionality of the Patient Protection and Affordable Care Act Under the Commerce Clause and the Necessary and Proper Clause, 32 J. LEGAL MED. 139, 155-58 (arguing that challenges to the individual mandate seek to revive both Lochner and pre-New Deal restrictions on Congress's Commerce Clause powers).
12. Simon Lazarus, Jurisprudential Shell Game, NAT'L L.J., Dec. 20, 2010, at 38, 39 (claiming that "[i]f conservative jurists invalidate this linchpin of the most important domestic legislation in perhaps half a century, they will restore Lochner-letter, spirit, the whole nine yards").
13. Peter J. Smith, Federalism, Lochner, and the Individual Mandate, 91 B.U. L. REV. 1723, 1726 (2011) (claiming that the case against the mandate is an attempt to revive Lochner).
14. Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 YALE L.J. ONLINE 1, 21 (2011) (arguing that, if the mandate is invalidated, "the desire to rein in government power can create a slippery slope of its own, to a state of affairs in which collective action problems go unsolved").
15. Ian Milhiser, Worse than Lochner, 29 YALE L. & POL'Y REV. INTER ALIA 50, 50-51 (2011) (arguing that "the ubiquitous lawsuits challenging the Affordable Care Act (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart-a methodology which allows judges to impose novel and extra-textual limits upon Congress's enumerated powers").
16. David B. Rivkin, Lee A. Kasey & Jack Balkin, Debate, The Constitutionality of an Individual Mandate for Health Insurance, 158 U. PA. L. REV. PENNUMBRA 93, 105 (2009), http://www.pennumbra.com/debates/pdfs/HealthyDebate.pdf (Balkin, Rebuttal) (arguing that striking down the mandate would require a "radical restructuring" of post-1937 Tax Clause jurisprudence).
17. For this distinction, see Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361, 381 (1985) ("[A] persuasive slippery slope argument depends for its persuasiveness upon temporally and spatially contingent empirical facts rather than (or in addition to) simple logical inference.").
18. Cf. Eugene Volokh, Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026, 1064-67 (2003) (discussing workings of judicial-judicial slippery slopes and noting impact of factors other than logical reasoning).
19. Nonetheless, a logical slippery slope could still be important even if it has no empirical effects. If upholding A really does require upholding B, that might undercut the logical soundness of the argument for A if it seems highly implausible that the relevant constitutional text allows B. I do not pursue this possibility in the present article.
20. See Bruce Yandle, Bootleggers and Baptists: The Education of a Regulatory Economist, 7 REGULATION, no. 3, 1983 at 12 (introducing the theory of the Baptist-Bootlegger coalition).
21. See also Bruce Yandle, Bootleggers and Baptists in Retrospect, 22 REGULATION, no. 3, 1999 at 5.
22. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).
23. See Brief for Petitioner at *21-51, Dep't of Health & Human Servs. v. Florida, No. 11-398, 2012 WL 37168, at *21 (Jan. 6, 2012) (putting the Commerce Clause issue first and devoting the majority of the brief to it); Brief for Appellant at 30-58, Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) (Nos. 11-1057 & 11-1058) (same); Brief for Appellant at 24-50, Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (Nos. 11-11021 & 11-11067) (same); Brief for Appellees at 27-57, Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011) (No. 10-2388) (same).
24. See Thomas More, 651 F.3d at 543-49; Mead v. Holder, 766 F. Supp. 2d 16, 29-34 (D.D.C. 2011), aff'd sub nom. Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011); Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882, 890-94 (E.D. Mich. 2010), aff'd, 651 F.3d 529 (6th Cir. 2011); Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611, 630-35 (W.D. Va. 2010), vacated, No. 10-2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011).
25. U.S. CONST. art. I, § 8, cl. 3.
26. See Gonzales v. Raich, 545 U.S. 1, 22-27 (2005) (summarizing this jurisprudence and ruling that Congress has virtually unconstrained authority over "economic activity").
27. 545 U.S. 1 (2005).
28. See, e.g., Erwin Chemerinsky, Health Care Reform is Constitutional, POLITICO (Oct. 23, 2009, 4:59 AM), http://www.politico.com/news/stories/1009/28620.html.
29. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 547 (6th Cir. 2011) (holding that "the text of the Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity, and neither does the Supreme Court... As long as Congress does not exceed the established limits of its Commerce Power, there is no constitutional impediment to enacting legislation that could be characterized as regulating inactivity").
30. Raich, 545 U.S. at 22-29.
31. See Ilya Somin, Gonzales v. Raich: Federalism as a Casualty of the War on Drugs, 15 CORNELL J.L. & PUB. POL'Y 507, 513-16, 519-21 (2006) (highlighting the broad scope of Congress's Commerce Clause power under the rational-basis analysis required by Raich).
32. See, e.g., John H. Kerr & Marjolein C.H. Vos, Employee Fitness Programmes, Absenteeism and General Well-Being, 7 WORK & STRESS 179, 184-89 (1993) (describing evidence that improved employee health increases productivity).
33. See, e.g., Lisa Chasen-Taber et al., A Prospective Study of Carotenoid and Vitamin A Intakes and Risk of Cataract Extraction in U.S. Women, 70 AM. J. CLINICAL NUTRITION 509, 512-15 (1999) (eating broccoli reduces risk of cataracts).
34. Kaumudi J. Joshipura et al., Fruit and Vegetable Intake in Relation to Risk of Ischemic Stroke, 282 J. AM. MED. ASS'N 1233, 1237-39 (1999) (eating broccoli reduces stroke risk).
35. Martha Slattery et al., Carotenoids and Colon Cancer, 71 AM. J. CLINICAL NUTRITION 575, 577-81 (2000) (eating broccoli reduces risk of colon cancer).
36. 661 F.3d 1, 18 (D.C. Cir. 2011).
37. In his dissenting opinion arguing that the court lacked jurisdiction to hear the case, Judge Brett Kavanaugh also emphasized that the Commerce Clause argument for the mandate has no limits
38. 720 F. Supp. 2d 882, 894 (E.D. Mich. 2010).
39. 766 F. Supp. 2d 16, 36 (D.D.C. 2011).
40. Liberty Univ. v. Geithner, 753 F. Supp. 2d 611, 633-34 (W.D. Va. 2010), vacated, 10-2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011).
41. Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1293 (N.D. Fla. 2011).
42. See Mead, 766 F. Supp. 2d at 36.
43. Neil Siegel, Four Constitutional Limits that the Minimum Coverage Provision Respects, 27 CONST. COMMENT. 591, 596-98 (2011).
44. See Seven-Sky v. Holder, 661 F.3d 1, 18 (D.C. Cir. 2011) (noting that "the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services"); Thomas More Law Ctr. v. Obama, 651 F.3d 529, 544 (6th Cir. 2011) (emphasizing the importance of the fact that "[v]irtually everyone requires health care services at some point"); Mead, 766 F. Supp. 2d at 37 (emphasizing "the inevitability of individuals' entrance into th[e health care] market"); Liberty Univ. v. Geithner, 753 F. Supp. 2d 611, 633 (W.D. Va. 2010) ("Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care."); Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882, 894 (E.D. Mich. 2010) ("The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market... The plaintiffs have not opted out of the health care services market because, as living, breathing beings.. they cannot opt out of this market.").
45. Thomas More Law Ctr., 720 F. Supp. 2d at 894.
46. Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 781 (E.D. Va. 2010), vacated on other grounds, 656 F.3d 253 (4th Cir. 2011); see also Seven-Sky, 661 F.3d at 51-52 (Kavanaugh, J., dissenting) (noting that this theory would "extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example"); Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1289 (N.D. Fla. 2011) (noting that "there are lots of markets-especially if defined broadly enough-that people cannot 'opt out' of. For example, everyone must participate in the food market").
47. See Florida ex rel. Bondi, 780 F. Supp. at 1289 ("Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and.. put less of a strain on the health care system.").
48. 766 F. Supp. 2d at 36-37.
49. See, e.g., Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1295 (11th Cir. 2011) (noting that "[t]he government submits that health care and health insurance are factually unique and not susceptible of replication due to: (1) the inevitability of health care need; (2) the unpredictability of need; (3) the high costs of health care; (4) the federal requirement that hospitals treat, until stabilized, individuals with emergency medical conditions, regardless of their ability to pay; (5) and associated cost-shifting").
50. See, e.g., Neil Siegel, Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision, 75 LAW & CONTEMP. PROBS., no. 3, 2012 at 29, 37-39.
51. See nn.38-43 and accompanying text.
52. Florida ex rel. Att'y Gen., 648 F.3d at 1244 (citing figure provided by the federal government).
53. Calculated from data in COUNCIL OF ECONOMIC ADVISERS, ECONOMIC REPORT OF THE PRESIDENT 188 (2011)
54. Gonzalez v. Raich, 545 U.S. 1, 22 (2005).
55. See discussion above
56. U.S. CONST. art. I, § 8, cl. 1.
57. See Florida ex rel. Att'y Gen., 648 F.3d at 1313-23 (holding that the mandate is a penalty, not a tax); Thomas More Law Ctr. v. Obama, 651 F.3d 529, 550-54 (6th Cir. 2011) (Sutton, J., concurring) (concluding that the mandate is not a tax); Thomas More Law Ctr., 651 F.3d at 566 (Graham, J., dissenting) (same); Mead v. Holder, 766 F. Supp. 2d 16, 40-41 (D.D.C. 2011) (ruling that the individual mandate is a penalty, not a tax); Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 788 (E.D. Va. 2010) (concluding that the mandate "is, in form and substance, a penalty as opposed to a tax"); Liberty Univ. v. Geithner, 753 F. Supp. 2d 611, 629 (W.D. Va. 2010), vacated, 10-2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011) ("I conclude that the better characterization of the exactions imposed under the Act for violations of the employer and individual coverage provisions is that of regulatory penalties, not taxes."); Florida ex rel. McCollum v. U.S. Dep't of Health & Human Servs., 716 F. Supp. 2d 1120, 1140 (N.D. Fla. 2010) (holding "that Congress imposed a penalty and not a tax"). For the sole exception, see Liberty Univ. v. Geithner, No. 10-2347, 2011 WL 3962915, at *16-21 (4th Cir. Sept. 8, 2011) (Wynn, J., concurring). The majority opinion in this case ruled that the mandate was a tax as defined by the Anti-Injunction Act but emphasized that the Act's definition of "tax" was broader than that of the Constitution.
58. United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996) (quoting New Jersey v. Anderson, 203 U.S. 483, 492 (1906) and United States v. New York, 315 U.S. 510, 515 (1942)).
59. See 26 U.S.C.A. § 5000(A) (West 2010).
60. See, e.g., Brief for Appellant at 50-51, 54, Florida ex rel. Att'y Gen., 648 F.3d 1235 (11th Cir. 2011) (Nos. 11-11021 & 11-11067) (emphasizing these points in the federal government's defense of the Tax Clause argument).
61. See Brian D. Galle, Conditional Taxation and the Constitutionality of Health Care Reform, 120 YALE L.J. ONLINE 27, 34-36 (2010).
62. Erik Jensen, The Individual Mandate and the Taxing Power, N. KY. L. REV. (forthcoming January 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1683462 (critiquing Galle's argument).
63. cf. Steven J. Willis & Nakku Chung, Constitutional Decapitation and Healthcare, 128 TAX NOTES 169, 187 (2010) (arguing that the mandate is not authorized by the Tax Clause even if it is a tax, because it would be an unconstitutional, unapportioned direct tax).
64. U.S. CONST. art. I, § 8, cl. 18.
65. 17 U.S. (4 Wheat.) 316, 413 (1819).
66. 130 S. Ct. 1949, 1956 (2010).
67. For discussion of this point, see Ilya Somin, Taking Stock of Comstock: The Necessary and Proper Clause and the Limits of Federal Power, CATO SUP. CT. REV., 2009-2010, at 242-43.
68. See Florida ex rel. Bondi, v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1297 (N.D. Fla. 2011) ("[R]ather than being used to implement or facilitate enforcement of the Act's insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself.").
69. See Printz v. United States, 521 U.S. 898, 923-24 (1997) (holding that a law that is not "proper" can exceed the scope of Congress's power under the Necessary and Proper Clause).
70. See, e.g., Brief of the Washington Legal Foundation & Constitutional Law Scholars as Amici Curiae in Support of Respondents, Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., (May 12, 2011) (No. 11-398), available at http://www.wlf.org/upload/litigation/briefs/11-398bsacWashingtonLegalFoundation.pdf (arguing that the mandate is not "proper").
71. Randy Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, 5 N.Y.U. J.L. & LIBERTY 581, 621-34 (2010).
72. See, e.g., Gonzalez v. Raich, 545 U.S. 1, 25-27 (2005).
73. See United States v. Comstock, 130 S. Ct. 1949, 1956 (2010).
74. Robert Cooter & Neil Siegel, Collective Action Federalism, 63 STAN. L. REV. 115, 159-80 (2010).
75. For basic expositions of collective action theory, see, e.g., MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (rev. ed. 1971).
76. RUSSELL HARDIN, COLLECTIVE ACTION (1982)
77. Research suggests that broccoli has a wide variety of health benefits. See The Health Benefits of Broccoli Make it a Meal Time Winner, HEALTH FOOD GUIDE, http://healthfoodguide.com/HealthBenefitsOfBroccoli.aspx.
78. Broccoli Beats Most other Veggies in Health Benefits, CNN (Apr. 17, 2000), http://articles.cnn.com/2000-04-13/health/broccoli.benefits.wmd_1_brassicachemoprotection-laboratory-broccoli-isothiocyanates?_s=PM:FOOD (citing research). See also works cited in note 26.
79. For cases against the mandate involving state plaintiffs, see Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (twenty-six states); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) (Virginia); and Pruitt v. Sebelius, No. 6:11-cv-30-RAW (E.D. Okla. Jan. 21, 2011) (Oklahoma).
80. See Matt Viser, Romney Support for Individual Mandate Complicates Health Care Politics, BOSTON GLOBE, May 12, 2011, http://www.boston.com/news/politics/politicalintelligence/2011/05/romney_support.html.
81. See Sharona Hoffman, Unmanaged Care: Towards Moral Fairness in Health Care Coverage, 78 IND. L.J. 659, 670-72 (2003) (describing the concept of actuarial fairness).
82. The extent to which this is a genuinely serious problem is debatable, as is the question of whether an individual mandate can solve it
83. See Gary Lawson & David Kopel, Bad News For Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 YALE L.J. ONLINE 267, 288-89 n.90 (2011) (citing evidence that cuts against both of these propositions). Here, I assume the validity of both claims, and suggest that there is no interstate collective action problem even if they are true.
84. See John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: The Case for Judicial Review in a Federal System, 99 NW. U. L. REV. 89 (2004) and literature cited therein.
85. See Hearing On The Constitutionality Of The Affordable Care Act Before the United States Senate Committee on the Judiciary 4 (2011) (statement of Charles Fried), available at http://www.judiciary.senate.gov/pdf/11-02-02%20Fried%20Testimony.pdf (stating that "[a]s for the veggies, I suppose such forced feeding would indeed be an [unconstitutional] invasion of personal liberty, but making you pay for them would not, just as making you pay for a gym membership which you can afford but do not use would not").
86. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
87. Jacobson v. Massachusetts, 197 U.S. 11, 29-30 (1905).
88. See, e.g., W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
89. See Ilya Somin, Op-Ed., Insurance Mandate Has Fatal Flaws, NEWSDAY, Aug. 16, 2011, http://www.newsday.com/opinion/oped/somin-insurance-mandate-has-fatal-flaws-1.3101602. Neil Siegel has justifiably criticized me for this omission.
90. A rare exception is that the Establishment and Free Exercise Clauses of the First Amendment might preclude mandates requiring people to purchase religious objects such as crosses or menorahs, or memberships in religious organizations
91. Goudy-Bachman v. U.S. Dep't of Health & Human Servs., 811 F. Supp. 2d 1086, 1103 (M.D. Pa. 2011).
92. Thomas More Law Ctr. v. Obama, 651 F.3d 529, 566 (6th Cir. 2011) (Sutton, J., concurring).
93. These include a variety of restrictions on smoking, restrictions on the sale of fatty foods, and others. See, e.g., JACOB SULLUM, FOR YOUR OWN GOOD: THE ANTI-SMOKING CRUSADE AND THE TYRANNY OF PUBLIC HEALTH (1998) (describing use of public-health rhetoric to justify restrictions on smoking, including some for which the health rationale was weak).
94. See, e.g., Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the "Central Obsession" of Constitutional Theory, 89 IOWA L. REV. 1287 (2004) (describing evidence of widespread political ignorance and its impact on policy).
95. Goudy-Bachman v. U.S. Dep't of Health & Human Servs., 811 F. Supp. 2d 1086, 1103 (M.D. Pa. 2011).
96. See Butler v. Perry, 240 U.S. 328, 331 (1916) (upholding such laws against a Thirteenth Amendment challenge and listing numerous states that imposed them).
97. See generally Ilya Somin, Foot Voting, Political Ignorance, and Constitutional Design, 28 SOC. PHIL. AND POL., Jan. 2011, at 202 (discussing benefits of foot voting).
98. Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 788 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011).
99. See, e.g., Lochner v. New York, 198 U.S. 45, 54 (1905); Adair v. United States, 208 U.S. 161, 180 (1908) (holding that the Due Process Clause forbids state bans on "yellow dog" contracts in which workers agree not to join unions); Adkins v. Children's Hosp. of D.C., 261 U.S. 525, 558 (1923) (striking down state-imposed minimum wage for women).
100. Bond v. United States, 131 S. Ct. 2355, 2364 (2011).
101. Virginia ex rel. Cuccinelli, 728 F. Supp. 2d at 782.
102. Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1295 (11th Cir. 2011). As discussed below, the Eleventh Circuit ultimately did not rely exclusively on the activity- inactivity distinction in striking down the mandate. However, this part of its reasoning exactly parallels that argument.
103. Gonzalez v. Raich, 545 U.S. 1, 25-26 (2005) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 720 (1966)).
104. See Florida ex rel. Att'y Gen., 648 F.3d at 1286 ("[F]ind[ing the distinction].. useful only to a point."); Goudy-Bachman v. U.S. Dep't of Health & Human Servs., 811 F. Supp. 2d 1086, 1103 (M.D. Pa. 2011) (ruling that "[t]his court rejects any distinction between activity and inactivity for purposes of Commerce Clause analysis").
105. Florida ex rel. Att'y Gen., 648 F.3d at 1286.
106. Goudy-Bachman, 811 F. Supp. 2d at 1103.
107. United States v. Lopez, 514 U.S. 549, 558-59 (1995); United States v. Morrison, 529 U.S. 598, 609 (2000).
108. DAVID E. BERNSTEIN, REHABILITATING LOCHNER 129 (2011).
109. See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding state vaccination laws).
110. See South Dakota v. Dole, 483 U.S. 203, 207-12 (1987) (ruling that Congress has very broad authority to impose conditions on grants to state governments); Sabri v. United States, 541 U.S. 600, 605 (2004) (same).
111. Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 782 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011).
112. Gonzalez v. Raich, 545 U.S. 1, 22 (2005).
113. See especially A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550 (1935) (striking down the National Recovery Act, one of the broadest regulatory statutes in U.S. history).
114. See Ilya Somin, The Tea Party Movement and Popular Constitutionalism, 105 NW. U. L. REV. COLLOQUY 300 (2011), http://www.law.northwestern.edu/lawreview/colloquy/2011/12/LRColl2011n12Somin.pdf (describing and partially defending this aspect of the Tea Party's agenda).
115. For a more negative view, see Jared A. Goldstein, Can Popular Constitutionalism Survive the Tea Party Movement?, 105 NW. U. L. REV. COLLOQUY 288 (2011), http://www.law.northwestern.edu/lawreview/colloquy/2011/11/LRColl2011n11Goldstein.pdf.
116. 317 U.S. 111, 128-29 (1942). For Thomas's disagreement, see United States v. Lopez, 514 U.S. 549, 596-601 (Thomas, J., concurring).
117. See Sabri v. United States, 541 U.S. 600, 602-05 (2004) (interpreting that power very broadly with the agreement of all the conservative Justices with the partial exception of Thomas).
118. See BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009) (describing constraints on the Court's willingness and ability to strike down popular laws)
119. Recent survey data suggests that the mandate is opposed by as many as eighty-two percent of Americans, and that the ACA as a whole has more opponents than supporters
120. See Bradley W. Joondeph, Beyond the Doctrine: Five Questions That Will Determine the ACA's Constitutional Faith, at 9, RICHMOND L. REV. (forthcoming) (health care symposium).
121. See Lawrence Jacobs & Suzanne Mettler, Structural Framing: Health Care Reform and Changing American Politics 2-11 (Am. Political Sci. Ass'n Annual Meeting Paper, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1903135 (showing that opponents of the law have consistently outnumbered supporters in public opinion polls since August 2009, and noting sharp differences with Social Security, which enjoyed broad support almost from the beginning).
122. See, e.g., Ilya Somin, Closing the Pandora's Box of Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments, 90 GEO. L.J. 461 (2002).
123. For originalist arguments in defense of the mandate, see, e.g., Akhil R. Amar, The Lawfulness of Health Care Reform, YALE L.J. ONLINE (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856506##/.
124. Jack Balkin, Commerce, 109 MICH. L. REV. 1, 15-30 (2010) (arguing that a broader definition of "commerce" existed during the Founding Era).
125. For criticism, see, e.g., Randy E. Barnett, Jack Balkin's Interaction Theory of "Commerce", U. ILL. L. REV. (forthcoming 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1803439&download=yes.
126. Robert G. Natelson & David B. Kopel, Commerce in the Commerce Clause: A Response to Jack Balkin, 109 MICH. L. REV. FIRST IMPRESSIONS 55 (2010).
127. See, e.g., DONALD HOROWITZ, THE COURTS AND SOCIAL POLICY (1977) (warning against such intervention).
128. See Goudy-Bachman v. U.S. Dep't of Health & Human Servs., 811 F. Supp. 2d 1086, 1103-04 (M.D. Pa. 2011) (striking down the mandate despite rejecting the slippery slope argument against it).