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