Thursday, March 29, 2012

The Importance of a Limiting Principle

During oral argument in the Obamacare case, one of the most heated issues was whether the individual mandate is consistent with any "limiting principle" of Congress's power under the Commerce Clause. Libertarian opponents of the mandate argue that there is no such limiting principle, while supporters of the law argue that there is.

A third group, however, seems to think that this talk of a limiting principle is nonsense. For example, Slate blogger Matthew Yglesias asks "What Is The Limiting Principle Of The Taxing Power?":
Congress could, if it wanted to, completely vitiate economic freedom purely through the tax code. You would impose a statutory rate of 100 percent and then create deductions for the stuff Congress wants you to buy—houses, health insurance, broccoli, whatever. . . If a political consensus exists that Congress wants to financially penalize non-purchase of broccoli, Congress will find a way. 
His argument is that the search for a limiting principle to the commerce power is pointless because Congress's other powers, such as the taxing power, have no limiting principle.  In other words, Congress can already do what it wants, so objections based on federalism and liberty are hollow.

This is incorrect. Congress could surely use its taxing power to accomplish all sorts of economic goals in the way that Yglesias suggests. But there is a clear structural limit to Congress's taxing power: the power to tax is limited to the power to take people's money away. The power to tax is not a power to directly regulate behavior at all. It is not a police power.

The commerce power, however, is a general police power to regulate any behavior with a substantial effect on interstate commerce. For example, Congress "regulates" the possession of controlled substances in interstate commerce by imprisoning people for possessing them. Thus, if Congress has the power under the commerce clause to mandate that people buy health insurance, it has the power to imprison them for failing to do so. (So far, it has chosen only to fine people.) The end result is that if there is no limiting principle on the commerce power—if the simple act of being alive is a commercial act—then Congress has the power to imprison anyone for anything. In other words, a general police power.

It is uncontroversial that the constitution does not grant Congress that kind of unfettered police power. Accordingly, the lack of a limiting principle works as a reductio ad absurdum, and the conclusion is that there must be a principled limit on the kinds of behavior that Congress can regulate under the Commerce Clause.


  1. Does it change the analysis if the "fine" (which is collected by the IRS) is actually a tax? Can the goverment tax a person for not purchasing insurance? Is any limiting principle necessary if the fine is acutally a tax.

    For that matter, people can be jailed for failing to pay taxes. I assume the tax statutes allow for this. Thus it seems like the taxing power can be used for more than simply taking money.

  2. Of course that changes the analysis, because then the mandate is not an exercise of the commerce power. If it is a tax (and that is a separate argument in the case) then there is no need to decide whether the mandate is proper under the Commerce Clause

    Your second point is sophistry. Every power that Congress has necessarily includes the power to punish people who refuse to yield. So Congress has the power to tax (take people's money) and of course that necessarily and properly entails the power to punish them for failing to do so. But the only thing a person can be jailed for under the taxing power is not paying money to the government. To be very specific, Congress could not mandate that people buy insurance under the taxing power and imprison them for failing to do so. The best it could do is impose a tax for failing to have insurance, and then punish people who fail to pay that tax. That is a lesser power, obviously.


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