In Gonzales v. Raich (2005), the Supreme Court seemingly reverted to providing expansionist interpretations of the Commerce Clause, holding that the intrastate growth of marijuana in California for medicinal purposes (lawful under California law and generally unlawful elsewhere) for the use of two seriously ill women for medicinal purposes and not to be sold interstate or intrastate was within Congressional power under the Commerce Clause. The Court found in the Commerce Clause the power to “regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” (emphasis added).
In applying precedent to the case before him, Judge Vinson noted that the Congressional Research Service had advised the Congress when it was considering ObamaCare that the insurance mandate was “novel” and “unprecedented,” presenting a “most challenging question.” These factors clearly required further analysis but did not mandate a finding of unconstitutionality. In the end, he concluded that there must be a determination, as yet unavailable from the Supreme Court which has considered only activity, of whether activity is needed or whether inactivity suffices:
It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” … and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.
Judge Vinson then considered whether the failure to buy medical insurance constitutes activity for Commerce Clause purposes and concludes that it does not. The government contended that everybody someday needs medical care and, should they be unable or unwilling to purchase it, some entity in effect has to purchase it for them. Judge Vinson did not buy that analysis:
As was discussed during oral argument, 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 are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. . . .
In response to the government’s contention that a “decision” not to engage in economic “activity” is tantamount to economic activity, Judge Vinson observed:
“Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.
He also rejected government reliance on the “necessary and proper clause,” holding that under applicable precedent it permits only those governmental intrusions which are “necessary and proper” for governmental actions permitted elsewhere under the Constitution.
Somewhat humorously, he noted that the government essentially admitted that without the insurance purchase mandate:
… the Act will have serious negative consequences, e.g., encouraging people to forgo health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry. … Thus, rather 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. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.
Judge Vinson accordingly held the insurance mandate unconstitutional as outside the authority of the Congress under the Commerce Clause. Having done so, he noted that although an early version of ObamaCare had had a severability clause (a very common inclusion in legislation to save its major parts from total destruction should some small part of it be held unconstitutional), the enacted version has none. He further held that the insurance mandate was, for all practical purposes, not severable from the rest of ObamaCare and that the latter must fall with the former. The government had acknowledged that the insurance mandate was “absolutely necessary for the Act’s insurance market reforms to work as intended.” To attempt to sever other parts would require substantial rewriting of all of ObamaCare, not a proper judicial function.
Finally, Judge Vinson held that there was no need to issue an injunction against implementation of ObamaCare, noting that “there is no reason to conclude that … [the] presumption [that the federal government will not ignore a federal court decision and proceed as though it had not been issued] should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.”
The case will doubtless be appealed and make its way eventually to the Supreme Court.