Jonathan Adler and Ilya Somin argue that Judge Sutton’s opinion upholding the individual mandate against a facial challenge is inconsistent with the Supreme Court’s decisions in United States v. Lopez and United States v. Morrison. More particularly, Adler and Somin view Lopez and Morrison as establishing some type of overbreadth doctrine for Commerce Clause challenges. They reason that the provisions held unconstitutional in both cases included within their reach activities that Congress could have permissibly regulated if it had legislated more narrowly. Yet Congress did not legislate more narrowly, and the Court held the entire challenged provisions unconstitutional. From these results, Adler and Somin conclude that constitutionality under the Commerce Clause is all or nothing, on a provision-by-provision basis.
Here is Somin:
Sutton’s analysis rests on a misinterpretation of the plaintiffs’ argument. The key point is not that a given plaintiff hasn’t engaged in economic activity, but that the regulation imposed by Congress does not require any such activity as a prerequisite for covering them. The fact that some of the individuals covered by the mandate could be regulated by a more narrowly drawn law (e.g. — one that covered only people who had already purchased health insurance) does not mean that the present mandate is constitutional as applied to them. Their having previously engaged in economic activity that Congress could regulate is purely coincidental. It is not the reason why the mandate applies to them, under the terms of the law itself.
The traditional test for a facial challenge is whether there is any set of circumstances in which the statute’s application would be constitutional. As Lopez shows, the proper way to apply this test is not to ask whether the statute reaches otherwise reachable conduct — commercial gun possession, the purchase of insurance, etc. Rather, the question is whether the class of activities expressly subject to regulation — that is, the conduct which brings an individual within the scope of the statute at issue — is itself within the scope of the Commerce power. As the Supreme Court has reiterated time and again (albeit mostly in cases upholding statutes against Commerce Clause challenge), what matters is what Congress did, not the specific conduct of the individual challenging the statute’s constitutionality. This is why Lopez prevailed.
These criticisms neglect the “essential part of a larger regulatory scheme” prong of Commerce Clause analysis. That prong provides that Congress can regulate some activity not otherwise within its reach if that regulation is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated” (Lopez). To demonstrate the unconstitutionality of a provision, then, it is not enough to say that it is overbroad, that is, that the provision encompasses conduct not otherwise within the reach of Congress.
After Gonzales v. Raich, one of the confusing features of Lopez is that the provision at issue there seemingly could have been constitutional not only if it were drawn more narrowly, but also if it were drawn more broadly (as Justice O’Connor argued in dissent). As Adler argues in the piece linked to his post, “[a] broad regulatory scheme that regulates economic matters in some regard will be constitutional in its entirety” (p. 764). Similarly, Somin observes in the piece available for download here, that Raich makes it “possible for Congress to shoehorn virtually any regulation of local noneconomic activity by designating it a component of a broad regulatory framework” (pp. 516-17).
Suppose Congress had included the ban on gun possession in school zones within a larger regulatory scheme, and Lopez made the identical argument for unconstitutionality. That argument could be characterized as an as-applied challenge seeking a carve-out–precisely the sort of argument that Raich foreclosed with respect to the CSA.