Professor Orin Kerr has a post here arguing that opponents of the Individual Mandate are wrong to argue that an Obama Administration victory in the Individual Mandate cases would  mean that there are no limits to federal power under the Commerce Clause. Unfortunately, this is at most only half true. According to Kerr, advocates of the Individual Mandate do believe that there’s still a common-sense limit:

[A]rguments in support of the [Individual] mandate do reflect a limitation on the scope of federal power: the line between regulating markets in goods and services and regulating outside of markets in goods and services. The basic idea is that Congress has Article I power to regulate markets in goods and services, as markets in goods and services are commerce. In contrast, Congress does not have a general Article I power to regulate on subjects outside of markets in goods and services, as that is not part of commerce.

But the regulation of markets is only half of the story, because there’s also the all-important Necessary and Proper Clause. As I noted last week, one question—if not the question—in these cases centers on the “essentiality” theory that the Supreme Court used in Gonzales v. Raich. There, the Court said that when Congress establishes a large-scale legislative scheme to regulate markets in goods and services, it can also regulate non-economic, local activity that is “essential” to the success of that scheme. That is, Congress can regulate outside of markets in goods and services when doing so is “essential” to making its regulation of markets effective. And who’s the judge of when something is “essential”? Raich doesn’t really answer that question. The opinion of the Court hints—but doesn’t actually say—that “rational basis scrutiny” applies, which would mean that Congress itself gets to decide when something is “essential” to the success of its laws, with no meaningful judicial review. But Justice Scalia’s concurring opinion doesn’t take a position, and in fact seems to apply a higher form of scrutiny.

Again, this is a crucial question, because the “essentiality” rule appears to allow Congress to regulate anything whatsoever, so long as it claims that doing so is “essential” to the success of some broader legislative scheme. And as the Eleventh Circuit observed, if anything-goes, rubber-stamp, rational basis review applies, then Congress would enjoy “carte blanche to enact unconstitutional regulations so long as such enactments were part of a broader, comprehensive regulatory scheme,” thus “eviscerat[ing] the Constitution’s enumerated powers and vest[ing] Congress with a general police power.”

Secondly, it’s worth emphasizing that the Obama Administration’s arguments have changed over time. Although the Administration has now settled on the argument that forcing people to buy insurance is not really a regulation of inactivity, but rather is just a regulation of “when” people pay for the health care that they consume—an argument neatly demolished by the Eleventh Circuit decision—that was not their original position; the Administration and its supporters in the legal academy took the position that of course the Mandate was constitutional because Congress can do basically anything that it wants to that’s connected with the economy. That’s why some district courts held that Congress can regulate any “mental activity” that, through the operation of supply and demand, eventually affects interstate commerce. That the Administration is now trying to moderate its tone and to wedge the Mandate into the “first principles” of limited, enumerated powers is a victory, of sorts, for those of us who take constitutional limits seriously.

It is therefore only half true to claim that supporters of the Individual Mandate are only advancing a limited conception of federal authority over markets for goods and services. That has lately become part of their argument. But the broader argument still remains whether Congress has power to do whatever it wants so long as it claims that doing that thing is essential to the success of its legislative schemes. That’s where the McCulloch and Comstock tests come in—tests that the Individual Mandate has to fail, if the federal government is still one of limited, enumerated powers.

(Cross-posted at PLF Liberty Blog)