Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, June 29, 2012

The Supreme Court's Health Care Ruling: Preserving the Individual as Sovereign, Rather Than Subject of Government

If the Affordable Care Act (ACA) had to be upheld by the Supreme Court, I am grateful that its survival turned on the line drawn by Chief Justice Roberts.  Chief Justice Roberts found the statute's individual mandate to purchase insurance –- a direct federal directive to take individual action rather than a regulation of preexisting individual action –- to falter when held against the Commerce Clause and the Necessary and Proper Clause.  Nonetheless, under Chief Judge Roberts's analysis, the mandate passes muster when alternatively conceived of as a tax (even though Congress and the President denied that the ACA included any tax increase).

Many other scholars, lawyers, and pundits, both on the Mirror of Justice and elsewhere, have and will comment further on the text, history, and precedents pertinent to the Commerce Clause and Necessary and Proper Clause challenges to the statute, as well as the practical implications of the ruling for health care and public policy into the future.

Reading the opinions in NFIB v. Sebelius, I instead found myself searching for the Court's guidance on a broader and deeper, even venerable, philosophical question that has persisted since the founding of the Republic (and earlier) -– the right and proper relationship of the individual to the State.  Resonating with me was a passage from the jointly-authored dissent (which actually was part of the majority that found the individual mandate beyond congressional power under the Commerce Clause).  In refusing along with Chief Justice Roberts to read the Commerce Clause as authorizing “the Federal Government to regulate all private conduct,” the four-justice joint dissent warned that to hold otherwise would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

In a decision from nearly a century-and-a-half ago, United States v. Lee, 106 U.S. 196 (1882), the Supreme Court emphasized the very different understanding of the place of the individual in a political society that prevailed in the United States from that which had prevailed in monarchical Europe before the American Revolution.  In the United States, “the people” are “sovereign.”  By contrast, under the British Crown, the Court observed, people are “called subjects.”

If the Court had upheld the individual mandate to purchase insurance as a proper regulation under the Commerce Clause, the federal government would have been affirmed as having the power to impose an affirmative duty on a person, not because of any action taken by that person, but simply because the person lives inside the borders of the United States.  If the federal government were permitted to exercise such direct power over a person based on that person’s mere existence, it would be difficult to avoid the conclusion that this person had been relegated into a mere “subject” of that government.  By virtue of being born, each person would become the proper subject of intrusive governmental direction.  Government would be the first principle in all matters, the first actor of that society.

If the people are sovereign, then they must be understood to precede government.  In the United States, the government proceeds from the people and is directed by the people.  Government must have power to act, within crucial limits, for the common good of the people.  But the federal government does not assume immediate power at the moment of birth and regardless of actions and choices affirmatively undertaken by that person.

To be sure, the individual mandate in the ACA survives, but in an alternative guise that I hope and believe may prove to be more than the simple clothing of a statutory provision in different garb.  Whether or not one is persuaded that Congress imposed a tax in constitutional effect when it expressly denied doing so, the power to tax individuals based on income -– and the ACA does vary the “tax” based on the income of those who have not purchased insurance -- has been constitutionally conferred on the federal government by the Sixteenth Amendment.  And, looking beyond the ACA, it is hard to envision many other attempts by Congress to directly regulate individuals by virtue of their mere existence that could be formulated as a tax and enforced as a tax.  Thus, the Court's approval of the ACA mandate as the equivalent of a tax is probably a ticket good for this ride only.  And that’s a good thing, or as good a thing as one could hope for if the ACA were to be upheld.


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I magree completely about the desirability of the rather meager limit the decision places on the totalitarian ambitions of the Federal government, but I's afraid it may be illisory.

West Coast Hotel rides again.

Justice Roberts shrugged off the echoes of Lochner in a big way. He reads the Due Process clause as protecting the citizens only from rather direct violations of the Constitution, whereas the Constitution itself warns againt that narrow view. In the eighth ammendment it refers to other, not innumerated rights. The Court is not so cautious: forget about other rights.

Now Due Process only defends rights clearly stated in the Constitution, from governmental actions that are not supported by legislation or court ruling. This pretty much takes the wraps off the Congress and Administration to do anything they please as long as the exercise minimal caution in drafting.

One area of current interest is Church. Nowhere is it defined in the Constitution, although it is named somewhat vaguely. In American legal history, church, or faith, refers to the individual. So for instance the individual cannot be forced to violate his conscience under the First Amendment. So can she be forced to buy abortifacients? Yes, no problem. Huh? Nuying abortifacients is not against anyones conscience; it is using them that is. As long as Americans are not force to actually use abortifacients there is no protection in the Bill of Rights.

The Catholic Church has an entirely different definition of church, or faith. For us, the definition of our chirch is not individual, it is corporative. I am not a Catholic by virtue of all the clauses of the Baltimore Catechism I espouse. I am made a Catholic because I am a member (very jurior grade, and only occasionally at that) of the Communion of the Saints. To sort of adopt the Catechism as my personal rule is to do what it says. To belong to the Body of Christ is to do what Jesus says and to build my life in imitation of him.

Because of the legal doctrine of Proceedural Due Process, I have no platform from which to argue our definition of Faith. There is no need for and no legitimacy of any interpretation other than the rather Prostestant tradition in the matter.

Traditionally in Common Law there was a basis on which one could argue that some action of other was "Unjust" on the basis of broader or deeper standards of justice. So one could at least raise the argument that for us, Faith defines not only what we do in a given context, it defines how we live more broadly. Now that entire line of reasoning is out of court right from the start.

I see dark clouds in the future because our faith requires that the law be Just: Lex Malum Nullum Est. We are forbidden to submit to an unjust law; it is null on it face. Since the Surpreme Court is unable to consider any "foreign" assertion of right, however, I see a lot of Legis Mala on the horizon.

Posted by: Joel Clarke Gibbons | Jun 30, 2012 7:52:17 AM

Oops. Make that Lege Mala. Darn that genetive case! It's so possessive. Try to work around it over to the plural side of the ledger but it just grabs you and woo't let go.


Posted by: Joel Clarke Gibbons | Jun 30, 2012 9:02:07 AM

Joel, if you consider what the Justices had to say in regards to the Individual Mandate and the Commerce Clause, you may find their reasoning does shed some light, not to mention that The Body of Christ, along with corporations, should be able to claim personhood too.

Posted by: N.D. | Jun 30, 2012 11:30:03 AM


The line that Justice Roberts found between the Affordable Care Act and requiring Americans to purchase insurance -- the terms of which are not controlled by the citizen -- is small consolation, I'm afraid. Again, the problem is Proceedural Due Process.

Suppose the Congress and the President come together to decide that in the interests of cooling the globe, you will required to by an electic car. They vote it and sign it, so it fulfills Due Process. Now, does it violate any known provision of the Constitution. None that I know of. There is no Constitutional proviseion banning the Feds to forcing you to buy their cars. So it stands, not under the Commerce clause but as a requirement on every law-abiding citizen.

In a rule of Substantive Due Process, courts recognize arguments based on what we will identify as Natural Law. That is to say, if you don't want an electric cars, you can go into court and advance the argument that making you buy a politically correct car is inherently unjust. I'll be there agreeing with you. We may lose, but who said life is perfect? In a world ofProceedural Due Process we will be wasting our time. In that world no court is permitted to consider what you or I think, or even what the entire civilian population agrees, is unjust. Here's the Constitution, they say. Find it in these pages or go home (stopping at the dealership on your way to check out the fabulous new models).

It is not there? End of story, case closed.

Then in theory the case moves to the court of public opinion and ultimately to the legislature. If we can overturn that law we can get our rights back. Even leaving aside for the moment our scepticism about the control that mere citizens have on anything, at best we see that we are left down by one on the count separate but co-equal branches of government. We hoped for two, but one of them has decided it will not play. As a matter of principle, it will never contradict anything the other two do unless they are so inept as to actually violate the Bill of Rights explicitly.

So now its two co-equal branches. But wait. How about legislation so amorphous that the President is simply authorized to fill in the provisions by executive decree? Hmmm. Oops, we just lost another co-equal branch of govermnent.

How many co-equal branches do we need to make a proper dictatorship? If justice is not a co-equal branch of government, then only tyranny is left to seize the reins.

Posted by: Joel Clarke Gibbons | Jun 30, 2012 2:08:32 PM

Joel Clarke Gibbons:

You say: "Suppose the Congress and the President come together to decide that in the interests of cooling the globe, you will required to by an electic car."

Do you mean that *if* you buy a car, it must be an electric car rather than a car that runs on gasoline or some other fossil fuel? Certainly the government cannot make people buy cars if people do not want or need cars. I do not know much at all about how the EPA currently enforces regulations about milage requirements and emissions standards, but it does seem to me the government already exercises the authority to determine what kind of cars Americans may buy by imposing standards on manufacturers. Also, states have the authority to test older cars for emissions and require owners to pay to bring them up to current government standards.

I can only imagine that the federal government has the power to eliminate altogether cars that use fossil fuels over the long if it sees sufficient reason to. It had the power to ban incandescent lightbulbs (although I believe it has defunded the enforcement of the ban).

Talk of tyranny and dictatorship is, in my opinion, nonsense. This is a representative democracy. It is not tyranny or dictatorship if you are in the minority (or even temporary majority) and don't like what the government has done. It is some kind of fantasy in which you feel you have the right to approve of everything done democratically and claim it is illegitimate if you disapprove. It is being a sore loser.

Posted by: David Nickol | Jun 30, 2012 4:20:55 PM


I was simply speculating about what limits the ability of the government to require everyone to buy an electric car.

They haven't done so up to now and very possibly they don't want to in the future, but what limits their freedom to impose that decision on people? I can't find anything to prevents it in theory. There would need to be some boilerplate about saving the planet, creating a presumed benefit to offset against the disadvantages of taking this sort of decision away from the publis. But there is no known Constitutional prohibition against forcing people to buy electric cars. They didn't even have cars in 1789.

Or the could take an alternative approach of enacting a tax on the public leading to a person liability that coincidentally equalled the cost of an electric car. Providing further that you can have an electric car free of charge. There is no clause in the Constitution that prevents the Feds fromn buying cars, or that prevents them from giving away surplus cars.

We would still potentially have working defenses against tyranny, but the fact remains that the one surest defense we have relied on has retired, and no longer wants to displease the administration.

Posted by: Joel Clarke Gibbons | Jun 30, 2012 5:02:27 PM

Joel Clark Gibbons,

I really don't get your point. Are you implying that up until the ruling on ACA, we could have relied on the Supreme Court to prevent the government from requiring us to buy an electric car, but now that Roberts did what he has done, there are no restraints on government? Or are you implying if Obamacare is constitutional, then *anything* is constitutional? (The provision about "coercing" states into expanding Medicaid was struck down, so apparent not everything is constitutional.) It seems to me conservatives have been saying all along that the "penalty" for not buying insurance was actually a tax. So how is it possible to disagree with Roberts that it is a tax? Also, as I understand the conventional wisdom, the fact that the majority was arrived at by two different rationales (4 for commerce clause, 1 for tax) does not expand congress's powers under the commerce clause.

Posted by: David Nickol | Jun 30, 2012 5:46:36 PM