In a prior post, I argued that Judge Sutton’s analysis in Thomas More Law Center v. Obama reveals how the challengers to the individual mandate rely on a theory of invalidity that has a flaw similar in structure to the challenge rejected by the Supreme Court in Gonzales v. Raich. If accepted, the challengers’ Congress-can’t-force-you-into-commerce theory would demonstrate that the requirement to possess insurance or pay a penalty is beyond Congress’s power only with respect to some individuals who do not already possess the requisite kind of insurance. The challenged statutory provision, however, applies both to those who already possess the requisite kind of insurance and also to those who do not. The Congress-can’t-force-you-into-commerce theory of invalidity can therefore be understood as a carve-out theory of invalidity.
Randy Barnett argues that Judge Sutton’s use of facial challenge doctrine to reject the plaintiffs’ challenge depends on logic that would eliminate any “justiciable way to adjudicate whether Congress has exceeded its Commerce Clause powers.” Barnett is right that this would be “a radical conclusion” that the Supreme Court would not adopt. But he is wrong that Judge Sutton’s analysis leads to this conclusion. The problem is not the absence of any way to challenge the constitutionality of the individual mandate, but rather the difficulty of winning on such a challenge given the applicable substantive law.
A key question in determining the success of a facial challenge (understood here as a challenge that seeks to demonstrate the unconstitutionality of a particular statutory provision in all its applications) is the applicable substantive law. Judge Sutton’s analysis reveals the plainitffs’ theory of constitutional invalidity to be an overbreadth theory akin to one rejected by the Supreme Court in Raich.
The nature of the plaintiffs’ Commerce Clause overbreadth theory can be revealed by contrast with First Amendment overbreadth doctrine. That doctrine can ground a successful facial challenge to a law that reaches both protected and unprotected speech. If the unconstitutional sweep of the law is too broad relative to the constitutional sweep of the law, then the law may not be validly applied to any speech. The law is completely unconstitutional.
One feature of Commerce Clause doctrine that should be particularly clear after Raich is that the relationship between the valid reach of legislative power considered, first, on an application-by-application basis and, second, on the basis of the reach of a statute as a whole, is the opposite of First Amendment overbreadth doctrine. Whereas overbreadth allows one to reason from the invalidity of some applications to the invalidity of all applications, Commerce Clause doctrine allows one way of reasoning from the validity of the set of all applications to the validity of some subset of applications.
Consider Raich itself. The Court analyzed the CSA as comprehensive drug-control legislation to regulate the interstate market in a fungible commodity, and refused to excise an individual component of that larger scheme. The validity of the CSA’s application to the challengers’ intrastate, non-commercial activity followed from the fact that Congress’s inability to reach the challengers’ activity “would leave a gaping hole in the CSA.” In other words, the Supreme Court in Raich viewed Congress’s inability to apply its law to a subset of activities that would be outside Congress’s power when considered apart from a comprehensive regulatory scheme as a reason for concluding that Congress did have the authority to reach those activities as part of a comprehensive regulatory scheme.