As I promised in a previous post, I'm going to work my way through the Supreme Court justices and try and determine how likely each is to vote that Congress exceeded its authority under the Commerce Clause when it enacted the individual mandate. I'll start with Justice Thomas. This is the good news!
I'll be researching these posts as I do them, but my initial somewhat educated impression is that Justice Thomas is probably the only Justice who is close to being a very high probability "unconstitutional vote" in a case decided on the merits.
To start at the beginning, at least in terms of late 20th century commerce clause jurisprudence, Justice Thomas made it clear in U.S. v. Lopez, the 1995 decision in which the Court struck down a portion of the first President Bush's Gun Free School Zones Act, that he had the stomach to largely rework the Court's Commerce Clause cases, which since the New Deal had come to be extremely permissive. (As an aside, I presume its fairly well known in conservative circles that the first President Bush was a very anti-Second Amendment president, one of the primary reasons he couldn't carry his base and was defeated by President Clinton, who contrary to popular misconceptions had a lot of weaknesses as a politician but was blessed with two opponents who couldn't generate any excitement among their own base.)
The Court ruled in Lopez that the government had exceeded its authority under the Commerce Clause in enacting the Gun Free School Zones Act. At the time, this was a huge decision. It really marked the first time since the Great Depression cases that the Court said there are in fact limits to what the federal government can do under the Commerce Clause. Before this case, the conventional wisdom in legal circles was that the federal government could do anything it wanted under the Commerce Clause - i.e., that the federal government was not really one of enumerated powers - and that the only limits on the federal government were the negative limits in the Constitution (the Bill of Rights and a few other constitutional provisions).
In Lopez, the Court finally said that the Commerce Clause does not give the federal government general police powers. Justice Thomas consented to the Court's decision, saying in a separate opinion that the Court's Commerce Clause cases had gone far beyond the text of the constitution. He specifically said that what the Court calls the "substantial effects" test - the idea that anything that has a substantial effect on interstate commerce can be regulated by the federal government - needed to be reconsidered and replaced with something respectful of existing precedent but more in line with the original meaning of the Commerce Clause. (He also said he wanted to chuck the "aggregation principle", but that would be included in any case in doing away with the substantial effects test.) He has said over and over again that it is very important that the Court make it very clear that Congress does not have a general police power.
Since Lopez, Thomas has been consistent in his opinions on the Commerce Clause. In the next big case, U.S. v. Morrison, Thomas wrote a one paragraph concurring opinion in which he said simply that the Court needed to ditch the substantial effects test. Even in Gonzalez v. Raich, the medical marijuana case where many think Justice Scalia apostatized himself (I'll explain in a future post why I think that was a very difficult case for Scalia), Justice Thomas stuck to his guns, asking how Congress could possibly regulate the cultivation and use of marijuana that never crossed state lines.
Finally, in his recent dissent to the Court's denial of cert in the 9th Circuit Alderman case, a case dealing with a federal law making it a federal crime for a person convicted of a crime to own body armor, he again said emphatically that the Commerce Clause does not give the federal government a general police power. He said in particular that the mere fact that there is an interstate "hook" is not enough to give the federal government the power to regulate something under the Commerce Clause. The regulation really does need to relate to commerce.
And that brings us to the present day. If I were to give someone the cliff's notes to the Court's rulings in Lopez and Morrison, which set out the test the Court purports to apply today, I would say that the cases stand for the principal that the federal government can't do things that aren't really economic under the Commerce Clause. So you can say that violence against women, or possession of firearms near school property, have an economic effect. But the Court has said yeah right, we all know those are really criminal laws and have nothing to do with commerce no matter how you define it. (This is not completely accurate - under the current test, there are other ways Congress could exercise power under the commerce clause. E.g., even though drug laws really have nothing to do with economics, at least 8 and I think maybe all 9 of the justices would agree that the federal government can make it illegal to sell crack across state lines. But in general, this is the "point" the Court was making.)
Justice Thomas has been very emphatic on these points, saying basically that the Court needs to discard the substantial effects test and saying over and over again that the federal government does not have a general police power. When he says this, what he means is that the federal government does not have a general power to regulate the lives of its citizens.
You will probably have noticed that, say what you want about it, Obamacare really is about economics. So even for Justice Thomas, I think Obamacare is in some sense "new ground." There's nothing in his record that you could point to and say he will obviously say this is unconstitutional.
But I'm nonetheless pretty sure he's going to be an "unconstitutional" vote in any case decided on the merits. Why is that?
If you read his opinion in Lopez closely, he pretty clearly says that he thinks the Court took a wrong turn during the Great Depression cases, and that he thinks commerce really means commerce. He said that for purposes of "stare decisis and reliance interests" he, or at least the Court generally, was willing to make some sort of peace with the Court's New Deal commerce clause jurisprudence. But with Obamacare, you have something that is really distinguishable. The regulation of inactivity, even as a part of a larger scheme that clearly is economic, is something new. And where there isn't a compelling reason not to, Justice Thomas clearly wants to go back to an original understanding of the Commerce Clause.
Under that understanding, I think the case is pretty easy. "Commerce . . . among the several states" means pretty much what it sounds like it means - trade between the states. And regulation of that commerce means regulation of the trade, not regulation styled as regulation of trade that in practical effect amounts to regulation of production or something else.
So under the original understanding, could Congress regulate the offering of an insurance product by an insurer in Texas to an insured in California? That's a tough question. The answer is that it probably could regulate that trade to some extent. But that wouldn't give it general authority to regulate the Texas insurer - it could only literally regulate the offering of insurance across the state line.
Lets give some examples. Under that original understanding, the federal government could probably say if you want to offer insurance outside of Texas, you have to tell the truth in your offering across state lines. But it probably couldn't have said if you want to offering insurance outside of Texas, you have to be adequately capitalized. (Or, if you want to offer insurance outside of Texas, you have to offer it to people with pre-existing conditions.) Because that isn't really regulating commerce. That's really Congress stepping in and regulating the business of insurance, and that's something that was left to the states.
(I admit that insurance is a difficult case. The principle might be easier to see with securities. Congress could say that if you want to sell securities across state lines, you need to not commit fraud in the sale. But it probably couldn't say that the company offering the securities needs to have at least a majority of independent directors. That has everything to do with business and economics, and nothing to do with trade. Remember, the Constitution talks about commerce among the several states the same way that it talks about commerce with foreign nations. Also remember that I'm talking about the original understanding, not the current interpretation. Under current doctrine, Congress can regulate pretty much any activity that is economic.)
I would guess that even Justice Thomas probably would say that he's stuck on the question of whether Congress can require insurance companies to offer insurance to people with pre-existing conditions. But would that in turn give Congress the authority to tell the citizen of California they had to buy the Texas insurer's insurance? No way. Your decision of whether to buy insurance might be very economic, but commerce doesn't mean "economic", it means commerce. And sitting at home just isn't commerce any way you slice it.
What about the argument that the government has made, that it really is commerce because of its economic effects on the insurance industry? Or that they can do it because its necessary and proper to do it in order to be able to effectively regulate the insurance industry. (This is really a necessary and proper clause argument the federal government has made. To Justice Thomas, that wouldn't make any difference here, as I think he made clear in Comstock.) It seems clear that Justice Thomas would say you can't make that move. That's pretty clearly getting you back to a general police power, and Justice Thomas has said over and over again that the Court can't let that be the case.
So if I'm a lawyer for the government, I'm saying that my main issue in getting a vote from Justice Thomas is how do I describe Congress's power to require people to purchase insurance in a way that does not give the federal government a general power to regulate the activities of the American people? If I have to start combining it with other things that Congress can do, then I think I pretty quickly get back to a general police power.
So I think you could say with a high degree of probability that in a case on the merits, Justice Thomas would vote "unconstitutional".
One last note - Why do I keep referring to a decision on the merits? The reason is that I think the standing issue, which is one that in general the conservatives on the Court have taken more seriously than the liberals (I know, this is painting with a very broad brush), is a very serious issue here. I'm not a litigator and am very unqualified to analyze the standing issue, but my gut feeling is that this case seems very much like something the Court might say is not really a "case or controversy". What I can say with some certainty is that whatever you think the likelihood is that the Court will say Obamacare or any part of it is unconstitutional, you should revise the likelihood of the law being held unconstitutional downward because of the standing issue. It at least has the potential to pick off a vote or 2.