According to Wikipedia, the Roach Motel is a type of trap for cockroaches that lures them into a sticky substance in which they become immobilized. According to Randy Barnett, Judge Sutton’s view of facial challenges in Thomas More Law Center v. Obama commits Judge Sutton to viewing individuals who possess health insurance as roaches in the sticky sweet trap of federal power–“[h]aving once voluntarily chosen to get insurance, they can be mandated never to stop.”
Suppose one agrees with Professor Barnett that citizens are not to be treated like cockroaches. What does that imply for the validity of the requirement in federal law that individuals obtain or maintain a minimum level of health insurance? Nothing, one would think. And so it is. Whether an individual has previously purchased health insurance would seem to be irrelevant to whether the federal government can require that individual to be insured. Judge Sutton does not necessarily disagree with this proposition. Indeed, it is the activity/inactivity distinction–which Judge Sutton rejects–that makes one’s prior purchase of health insurance relevant to the constitutional analysis.
Judge Sutton undermines the activity/inactivity distinction by arguing that it is within Congress’s power to regulate those who possess health insurance that they previously purchased. At most, then, the plaintiffs’ theory of invalidity shows that the mandate is overbroad. Yet Judge Sutton concludes that the form of alleged overbreadth–a flawed generalization that groups together all of the uninsured–is not of the sort that violates the Commerce Clause. He then invokes, as a fallback argument, the idea that facial invalidation would be inappropriate “even if the Constitution prohibit Congress from regulating all of the self-insured together.” Again, this is a fallback argument. The principal argument is that Congress may permissibly regulate all of the self-insured together.
Because the turn to facial challenge doctrine is a fallback argument, it is descriptively inaccurate for Barnett to assert that Sutton’s view of facial challenges “allowed him to avoid the hardest issues posed by the mandate: compelling citizens into a market – here the insurance market – who are not currently in that market.” Judge Sutton faced that issue, and resolved it against the challengers.