Individual Mandate as National Defense?

Akhil Reed Amar is a Yale law professor who has published extensively on the Constitution.  I am a great admirer of his work.

I have read his extensive America’s Constitution: A Biography, the popular For the People: What the Constitution Really Says about Your Rights, and a law review article he wrote entitled “The Bill of Rights as a Constitution.”  I admire his fluid prose, his passion for the subject, and of course his broad knowledge.

But then I watched a Youtube video, a debate with other legal experts on the constitutionality of the Affordable Care Act’s “individual mandate” (or tax or whatever).

Honestly, I was pretty close to shocked.

Here is Akhil Amar, one of the most decorated and prominent living scholars of our Constitution, saying that the individual mandate can be justified on six different grounds: three arguments on the commerce clause, and two on the taxation power.

But his most striking claim was the sixth, national defense.

Yes, Akhil Amar claimed that the individual mandate could be constitutional if grounded in Congress’ power to ensure the national defense.  A law that has nothing at all to do with foreign policy or military preparedness, nothing to do with the land or naval forces (nor the air forces for that matter), nothing to do with diplomacy or foreign nations, could rest on Congress’ duty and power “to provide for the common defense…of the United States.” (Art. 1 Sec 8 Cl. 1)

How does he manage to make this puzzling move?

He rests his argument on reference to expert testimony that the next terrorist attack in the United States is likely to be biological.  Therefore, as a measure to promote the general health of the population, and thus to mitigate the next likely terrorist attack, the government might coerce/encourage us to purchase health insurance to improve the overall state of national health.

The reasoning here is weak, to say the least.  First, Amar needs to be able to establish a causal link between having insurance and superior health, using statistical evidence to show definitively that people with health insurance are healthier than those without, and that this better health is caused directly by the insurance.  Then, he must show that whatever surely modest increases in health would accrue to the people as a whole would significantly deter or delay a biological attack.  If the former is difficult, the latter is nearly impossible.  Lastly, I propose that he should also have to show that such a measure is necessary to achieve national security; I am willing to grant the expansive definition of the term put forth in McCullough v. Maryland (to mean more “convenient” or “useful” than strictly essential), but I still propose that this argument fails. There still must be considerable evidence that such a biological attack is foreseeable and expected reasonably soon, and that the individual mandate, even if it would considerably enhance herd immunity, would mitigate the attack in such a way as Congress could not otherwise perform.

I propose this strict-scrutiny type of test (compelling interest achieved through a narrowly tailored statute) because of the domestic nature of the foreign-relations clause's execution (which should, I propose, automatically trigger suspicion), and the lack of any principled limits on future exercises.  If Congress may enact this law as necessary and proper to ensure the national defense in the McCullough sense of "necessary", some bound on that power in the future is required. Below, I elaborate on the dangers of this lack of principled limit.

Congress has extensive powers under the Common Defense Clause and other military matters.  Article I Section 8 Clauses 10 and 11 give Congress power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations,” (Cl. 10) and to “declare war…and make rules concerning captures on land and water.”  This is of course to say nothing about Clauses 12-16 of this same section, which empower Congress to create a standing army, and navy, to regulate said forces, to call on the state militias when needed, and to organize, arm, and discipline the militia when called forth.  Suffice it to say, Congress' power over national defense is extensive, and nearly exclusive to the states and local governments, only shared with the President.

This law, clearly, does not and cannot fall within the ambit of common defense as the Constitution sets it out.

This claim requires piling “inference upon inference”, each stretching farther than the last, to connect the policy with that particular power.  Congress is of course empowered to enact “all laws which shall be necessary and proper for carrying into execution the foregoing powers,” but for the national defense, such a policy is neither.  It is not necessary as there are clearly many other, more effective measures which Congress and the executive should take: counterterrorism plans, intelligence gathering, alliance-forming, etc. to contain terrorist cells.  And it is not proper because, as stated above, the mandate is likely mostly ineffective toward that end.

As I know that the Court tends to give Congress and the executive a wide berth in matters of military regulation, I am sure that there is little case law on the extent of the Common Defense Clause’s grant of power.  And to the extent that there is such a body of precedent, I am certain that it could not extend to grants of power on domestic policies intended to improve the health of the citizens to parry an attack nowhere visible on the horizon.

So where would this power end?  What would be impermissible for Congress to encourage/coerce citizens to do?  If Congress can compel (Justice Roberts argued that the mandate, as a tax, is less coercive than criminal prosecution; to an extent, I can buy that, but people who pay taxes generally do what they can to avoid them.  The end result would be little different) purchasing insurance through a mandate/tax, what could it not do?  May Congress increase taxes on those whose medical records show a given level of cholesterol?  Or those with a BMI over a certain level?  May Congress compel immunizations by similar means?  Or yearly physicals?  May it do all these things simply because some supposed experts testify that a biological terrorist attack may possibly loom somewhere on the horizon?  Would it make any constitutional difference whether such an attack were anticipated within one year, ten years, or fifty years?  How much would the level of evidence amassed by those experts matter?  Amar offers no answers.  I can see no principle preventing Congress’ power from extending to these areas should the individual mandate pass muster under the Common Defense Clause.

In the end, I was startled to hear Amar make this claim.  Even a novice like me easily deconstructs this argument.  It is beneath the intelligence and expertise of a man whose scholarship has inspired and fueled my interest in constitutional law, history and politics.

Here is the link to the video in question.  The offending segment from Amar begins at about 40:20.

http://www.youtube.com/watch?v=JDwWvGXsPa8

An Amendment for Congressional Term Limits

I’ve been watching videos on iTunes U from the Harvard Law School; in 2011 they held a series of talks from various scholars, politicians, and other observers on the possibility of petitioning the states to call on Congress for a constitutional convention.  One day of the convention was dedicated to the topics which might arise in such a convention—both the pet topics of those present and predictions as to what we could expect (addressing the possibility of a “runaway convention”, a worry that to me seems remote both because of the gravity of the circumstances and the need for ¾ of the several states to approve any proposed amendments).

            None seemed like a better idea to me than an amendment for Congressional term limits.

            One animating principle behind calling on the states to petition Congress for a convention (instead of the usual route of starting the amendment process with Congress) is distrust for the political process.  One presenter pointed out that James Madison estimated that right before the Revolution, 1/3 of the American colonists supported a revolution, 1/3 were loyal to the Crown, and 1/3 were generally indifferent.  If this is anywhere near true, then Congress has long rated lower in Americans’ minds than King George.

            The first Congress proposed a list of amendments which became the Bill of Rights.  All of these greatly limited the Congress’ own power either explicitly or by strong implication, with language like “Congress shall make no law…”, the limiting language of the 10^th Amendment, or the various substantive and procedural guarantees favoring the individual against the enforcement of Congress’ laws.  All of these measures either directly limited what power Congress might wield, or at best limited the means by which Congress and the executive branch might make such laws practically effective.  Never again in our history has such a powerful branch of government so sweepingly and brazenly limited its own power.  Can anyone imagine a modern Congress so recklessly apt to bind its own hands?  Can anyone conceive of a future Congress, or any other branch of government, so willing to surrender broad swaths of its own power?

Admittedly in theory, Congress’ power already extended only to enumerated items; as such many Federalists thought a Bill of Rights superfluous or even dangerous.  Still, many delegates to Congress assumed their posts believing in the need for a Bill, and/or under explicit instructions from their constituents.  Such amendments’ enactment would then also constitute self-preservation.  Given all of this, such willing surrender of power—even indeterminate, contestable power—still appears remarkable.  Congress could have proposed a more limited Bill, perhaps one that preserved its power to legislate in vaguely defined grave circumstances, or a shorter list with fewer enforceable guarantees. 

So why would they have done so?

Because most of them did not expect—or want—to stay in office for long.

            How can we recover the possibility of a Congress willing to limit its own power so drastically?  By forcing legislators to leave office, imposing more forcefully the reality that they will soon be unable to undo any laws that they enact—like the first Congress, they must keep in mind that limits they set may benefit them in the future, and that any laws may work to their disadvantage.

            In addition to ensuring a more representative sampling of the people (simply because more people will pass through the halls on Capitol Hill), such an amendment would set a limit to the dreaded “career politician”, and limit the political inertia influencing states and congressional districts to continue to reelect longtime Congressmen (and women) so as to maintain a highly influential delegate in the federal legislature.  This plan would also force legislators to maintain careers—or career prospects—outside of their Congressional duties.  Contrary to being a distraction, I think that with the assistance of various congressional aides in research and policy development, maintaining a career outside of politics would help to keep our legislators more grounded in life outside the Beltway.

            Weakening the grounds for the development of the career politician inculcates congressional service with more of a sense of civic duty—I leave my job to serve my state/district/country, but soon I must return.  I am not long for that world; I maintain my local attachments and loyalties.  Our Anti-Federalist co-founders feared that Congress would turn into a self-dealing ruling elite; I fear it has taken some steps in this direction.  Term limits seem a good way to fix that problem.

            To address some potential downsides: some might counter that forcing a more frequent Congressional recycling would force new delegates to learn their ins and outs of the legislature every so often.  There would be less overall experience on Capitol Hill, less professional wisdom from which newcomers could learn.  I acknowledge this could be a problem, but I answer that at least some of these “skills” which newcomers would learn constitute some of the shadier aspects of legislation that have driven Congress so deeply into the depths of the public opinion.  Outgoing legislators could serve as consultants or advisors for the incoming rookies.  Much of this advice would probably have centered on which legislators are prone to negotiate, which ones to avoid, which ones have certain pet projects, etc.  With constant recycling, such acclimation becomes obsolete as rapid turnover mitigates the wisdom the old might share with the young.

            I touched on another potential problem earlier: that some districts losing influential, tenured legislators might lose out in this process by having to find new blood.  These would include districts with a speaker or minority leader.  But surely those districts without a Ted Kennedy, John Boehner, Paul Ryan, or Nancy Pelosi, etc. outnumber those that do.  The overall benefits of cycling in and out legislators who are less likely to make unnecessarily broad use of their powers surely outweigh the parochial detriments of depriving a few states and districts of highly influential representatives.

            Alternatives--such as my off-the-cuff thought that incumbents beyond a certain point must achieve a supermajority of their constituents to remain in office—run into other principled problems.  Such an amendment is awfully meddlesome in local affairs, and is likely to frustrate local politics more than an absolute bar.  Imagine a scenario in which a popular local politician runs with a strong local majority but is denied reelection because a minority faction (a loaded term, I know) organizes well enough to frustrate his political efforts, and as such to put their own candidate into office (one possible outcome).  Such an anti-democratic measure is more likely to fuel fires in local politics than an absolute bar which forces a majority party to run an entirely new candidate, and thus to feed on their democratic advantage, than a rule which may allow a minority party to dictate policy in national matters.  The aim of such an amendment is not to empower minority parties, but to air out Congress with a greater number of individuals carrying the democratic seal of their constituents, and as such to make each one less wedded to his or her own power.