Ilya Somin, Jonathan Adler, and Randy Barnett have criticized Judge Sutton’s reliance on the distinction between facial and as-applied challenges in upholding the minimum-essential-coverage provision of the Affordable Care Act. Before I had the chance to read Judge Sutton’s opinion carefully, my initial reaction was also critical of this aspect of Judge Sutton’s opinion. After Raich, it seemed difficult to conceive of a non-facial analysis of constitutionality under the substantial effects prong of the Commerce Clause, when Congress seeks to justify an exercise of legislative power as an essential part of a larger scheme that regulates interstate commerce.* It now seems to me, however, that Judge Sutton’s analysis reveals how the challengers to the individual mandate make a similar mistake to one made in Raich, although in a different guise.
The challengers in Raich did not challenge Congress’s authority to enact any particular provision of the Controlled Substances Act, but argued that “the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.” The Court rejected this attempt to carve out a subset of the regulated activities as beyond Congress’s power. The Court drew from Wickard the principle that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” As applied to the challengers’ activities in Raich, the Court held that “Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.” This reasoning clearly forecloses any attempt to view the challengers’ as-applied claim apart from the reach of the statute more broadly; Congress could reach intrastate activity as part of “comprehensive legislation to regulate the interstate market in a fungible commodity.” Confronted with comprehensive drug-control legislation, the Court concluded that it would “refuse to excise individual components of that larger scheme.”
The Court distinguished the challenge in Raich from those in Lopez and Morrison on the ground that the parties in those earlier cases “asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety.” This distinction is “pivotal,” said the Court in Raich, because “we have often reiterated that ‘[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.’” (Raich, quoting Perez, quoting Wirtz.)
The “individual mandate” challengers learned this lesson from Raich and challenged an entire statutory provision: 26 U.S.C. 5000A. But here’s where it gets interesting. The theory of invalidity that they advance–at least so far as Judge Sutton understood that theory–is a carve-out theory like that advanced in Raich. The terminological distinction between “individual mandate,” as the challengers call the provision, and “minimum essential coverage provision,” as the government refers to it, does much of the work. The “mandate” is to possess insurance of a certain sort. A penalty attaches to the failure to possess insurance. This requirement, by its terms, applies both to those who already have the requisite insurance (and are required to maintain it) as well as those who do not have the requisite insurance (and are required to obtain it). The challengers’ theory, as Judge Sutton understands it, aims only at the latter category. Although the challengers do not purport to seek “to excise, as trivial, individual instances of the class” of regulated activities, their theory of invalidity reaches only a subset of the regulated class of activities.
Put another way, the challenged provision does not simply require those without insurance to go out and buy it. It also requires those with insurance to keep it. And Judge Sutton concludes that it is not beyond Congress’s power to require those with insurance to maintain it. It is only at this point that the distinction between facial and as-applied challenges does any work in Judge Sutton’s analysis. The work it does is this: Because a facial challenge must fail if the challenged provision is constitutional in some applications, a theory that (at most) demonstrates the invalidity only of some applications of the individual mandate must result in rejection of the facial challenge. On this approach, a reviewing court need only determine whether the facial challengers’ theory would demonstrate the unconstitutionality of a provision across the board if accepted. If it would not do so, then the facial challenge must be rejected.
*(That analysis may be better conceptualized as an inquiry into whether a particular exercise of legislative power is necessary and proper to a regulation of interstate commerce, but the difference is unimportant for the facial vs. as-applied analysis, so we can leave this distinction to the side for now.)