JURIST Guest Columnist Stephen Simon of the University of Richmond argues that the Supreme Court’s health care decision reflects a rights gap in current US constitutional discourse, where certain claims against federal action have the character of rights claims while receiving no protection from the Constitution as it is presently construed…

Much of the reaction to the Supreme Court’s decision on the constitutionality of the individual mandate in the Affordable Care Act has focused on politics. In addition to consideration of the impact on presidential politics, there has been speculation about judicial politics, including whether Chief Justice John Roberts’ opinion was influenced by strategic calculations. I want to focus here on what the decision reflects more broadly about our constitutional rights discourse.

As Chief Justice Roberts emphasized in his opinion for the Court, and as every schoolchild learns, the US was designed as a government of “enumerated powers.” To accomplish the end of protecting individual rights from intrusion by the federal government, the framers did not adopt a strategy of enumerating each right that was to be protected. Instead, their strategy was to specify the powers that the federal government would enjoy. Any exercise of power not on the island of the government’s enumerated powers effectively fell within a sea of protected rights. Although the Bill of Rights was added to address Anti-Federalists’ demands for explicit reassurances, many of the framers feared that the Bill would be mistakenly interpreted as suggesting that the US Constitution only protected enumerated rights.

The framers’ strategy for protecting rights was undermined by the expansion of congressional power under the Commerce Clause beginning in the late 1930s. The justices held in a series of cases that the US Congress could regulate any activity under their commerce power, so long as the activity had an effect on interstate commerce, broadly defined. For decades, the Court did not hold a single congressional act void on the grounds that it exceeded the commerce power. This suggested that the enumerated powers strategy was a dead letter, because that strategy could not survive if one of Congress’s powers was expanded so that it included any regulation that Congress conceivably would want to enact.

That longstanding conventional wisdom was called into question, however, when the Court re-established at least some limitations on the commerce power in US v. Lopez and US v. Morrison. Doctrinally, the upshot of these decisions was that Congress could only regulate activity under the commerce power if the activity in question was “quintessentially economic” in character. No one, though, could be sure of the long-term implications of Lopez and Morrison, especially since both were decided by 5-4 votes. While anticipation of the health care decision focused largely on the immediate implications for health care reform and national politics, it also fixed on the big-picture constitutional question: do we still have a federal government of enumerated powers?

Most observers assumed that the answer to that question would hinge on the Commerce Clause. The mandate was upheld, however, despite five votes that it exceeded the commerce power. In a portion of his opinion not joined by any other justices, Roberts maintained that upholding the mandate on commerce grounds would eviscerate the framers’ conception of limited government. Yet, writing for a five-member majority, Roberts also determined that the mandate was a valid exercise of the taxing power. While conceding that the mandate was aimed at influencing individuals’ behavior, the majority saw no constitutional impediment since Congress’ ability to regulate through taxes has long been recognized.

Where does this leave us with respect to the question of whether we still have a government of enumerated powers? It is time to recognize that we have a rights gap in our constitutional discourse. The gap consists of the claims against federal action that have the character of rights claims, but for which the Constitution as presently construed can offer no protection. The opinion by Roberts (in the portion not joined by other justices) and the opinion by the four dissenters described how the mandate raised questions about rights and liberty. In explaining why the mandate was not within the commerce power, for instance, Roberts spoke of the mandate commanding individuals to engage in commerce against their will. Upholding the mandate on commerce grounds, he wrote, would authorize Congress to make “countless decisions” for individuals. This theme of decision-making evoked the concept of autonomy that has been central in the Court’s right to privacy jurisprudence. The dissenters similarly reasoned that allowing Congress to regulate economic inactivity would “make mere breathing in and out the basis for federal prescription and . . . extend federal power to virtually all human activity.”

Nevertheless, the enumerated powers strategy for protecting rights was unavailing, because even when the minimal limitations remaining on the commerce power are exceeded, another clause operates with an even broader reach; the government may regulate individuals’ choices through the coercive force of the tax mechanism. The result is that today, precisely as many framers feared, the only viable strategy for protecting rights is to assert that a specific constitutional right has been violated (as opposed to arguing that legislation exceeds congressional power). Under current jurisprudence, however, almost all of the Constitution’s protections fall within the areas of expression, rights of the accused, equal protection, or a small set of substantive due process rights, such as privacy. But do all potentially excessive intrusions on individuals’ freedom fall within these limited categories?

When the Court reversed its interference with the New Deal in the late 1930s, it also shifted away from the protection of property rights. Since then, to characterize activity as economic practically is to remove it from meaningful conversation about rights protection. This is reflected in the expansion of the commerce power to cover virtually any economic activity. The health care decision shows that even decisions not to engage in economic activity can be regulated, so long as it is done through a mechanism that itself is essentially economic character — the creation of incentives through taxes. In effect, any behavior may be brought within federal power if it can be filtered through economic or financial motivations.

What makes this especially troubling is that limitations on government so often are equated with constitutionally enforceable rights. If activity can be viewed through the prism of economic decision-making, then it can be removed from the realm of constitutional rights jurisprudence. And it is a small leap to the removal from rights discourse entirely. My aim here is not to argue whether any particular policy is or is not constitutional. Rather, it is to raise the larger question of whether we still have the constitutional language for discussing the full range of ways in which the exercise of government power at least arguably interferes with individual liberties.

Stephen Simon is an Assistant Professor of Political Science and Philosophy, Politics, Economics and Law (PPEL) at the University of Richmond. His areas of expertise include constitutional law, civil rights and civil liberties, political and legal theory, and the judiciary and American politics.

Suggested citation: Stephen Simon, The Affordable Care Act Decision: A Rights Gap in US Constitutional Discourse, JURIST – Forum, Jul. 19, 2012, http://jurist.org/forum/2012/07/stephen-simon-rights-gap.php.