Reducing Judge Silberman’s Interpretation of the Term “Regulate” to Absurdity

Reducing Judge Silberman’s Interpretation of the Term “Regulate” to Absurdity

via Patterico's Pontifications by Aaron Worthing on 11/18/11

[Guest post by Aaron Worthing.  Follow me by Twitter @AaronWorthing.]

As I said on John Smart's show the other day, I have not been paying as much attention to the different opinions coming down in the various Obamacare cases ever since we had a split in the circuits.  That is because at that point, I came to believe that Supreme Court review was all but guaranteed, and subsequent events have vindicated that belief.

But in the D.C. Circuit version of the case, one part did stick in my craw a bit, and I thought I would take a moment to address it.  One of the most basic arguments against the mandate goes something like this.  The Commerce Clause says that

[t]he Congress shall have Power… [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

That is found in Article I, Section 8, Paragraph 3.  What opponents of  Obamacare's mandate have said (including myself) is that this grants only the power to regulate commerce that already exists and not to create it.  But, Judge Silberman writes for the majority in the D.C. Circuit Obamacare case that this is an incorrect reading of the language:

We look first to the text of the Constitution.  Article I, § 8, cl. 3, states: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  (emphasis added).  At the time the Constitution was fashioned, to "regulate" meant, as it does now, "[t]o adjust by rule or method," as well as "[t]o direct."  To "direct," in turn, included "[t]o prescribe certain measure[s]; to mark out a certain course," and "[t]o order; to command."  In other words, to "regulate" can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market.  Nor was the term "commerce" limited to only existing commerce.  There is therefore no textual support for appellants' argument.

First, I think that is a facile reading of those definitions.  Ordinarily to direct a thing is to control it but not to create.  For instance, when a police officer is told by his supervisor to "direct" traffic, we don't take that as a power to create traffic, only to channel the flow that is already there.

The other reason why this reading is shallow is that it fails to recognize how that interpretation applies to the other words of that provision of the Constitution.  And to a certain extent this is a product of how modern Commerce Clause doctrine has become divorced from the text.  Every lawyer will tell you that the phrase "commerce… among the several states" means that the Congress can only regulate interstate commerce—that is, commerce between states.  Commerce wholly within a state, intrastate commerce, cannot be touched.  The same lawyers will also tell you that the Supreme Court, however, has completely ignored this clear textual command since the 1930's.  I think the best explanation is that the Court was bullied into making bad precedents by Franklin Roosevelt's court-packing scheme.  The official explanation in the case law is that any commercial activity that affects interstate commerce can be reached under the Necessary and Proper Clause.  But that logic doesn't hold up to scrutiny, because the upshot of it is to erase a distinction written into the Constitution itself between intrastate commerce and interstate commerce.  What was the point of inserting that phrase "among the several states" if that distinction was going to be swept away by the Necessary and Proper Clause?

(Indeed, it is a principle of statutory interpretation that one should "[a]void interpreting a provision in a way that would render other provisions of the Act superfluous or unnecessary."*  That will be important again in a minute.)

Another less feeble explanation for excising the interstate requirement from the interstate commerce clause is to argue that by advances in technology the distinction was erased.  Now there is some truth to that.  When you walk into a Target store, only most a small percentage of the items on the shelves are made within the same state you are living in.  Indeed now and then it is pointed out that many items stamped with the "Made in the U.S.A." logo in fact are "made" to a significant extent in other countries with debates about how much a thing should have to actually have been made in America to earn that logo.  The reality is that our trade is far more interstate and indeed international than it ever has been before.  But that does not justify throwing out the distinction altogether.

Still, because of modern Supreme Court precedent, it is easy to forget that in the minds of the founders there is such a thing as intrastate commerce that cannot be touched by the Federal Government.  And if the word "regulate" can be read to include creation in relation to the "commerce" element of the interstate commerce clause, then why can't it also be read to allow the Federal Government to create the "interstate" aspect as well?  That is, if the word regulate means that the government can force you to buy health insurance (or broccoli), why can't it say to a person engaged in intrastate commerce that they must take their products across state lines?  That is the direct implication of Silberman's reading of the term "regulate."  And this interpretation is particularly galling if you buy the "technological" justification for the expansion of federal commerce power.  If you believe that in 1789 transportation was so difficult that most commerce was more intrastate than it is now, then Judge Silberman's reading would have allowed the federal government to force a person to take their goods across state lines at a time when the trip was much more difficult than it is today.

And to reduce his interpretation of the term "regulate" to even greater absurdity, certainly we would agree that if the purchase of Health Insurance is commerce, surely building a car and selling it is also commerce, right?  The precedents from the modern Supreme Court are especially clear on this point.  So by Judge Silberman's interpretation of the term "regulate" the Commerce clause grants Congress the power to take a person who is not working, or working in another industry, and force that person to work in the manufacture of automobiles.  Now anyone casually familiar with the Constitution would reasonably pipe up and say, "but wouldn't that be involuntary servitude in violation of the Thirteenth Amendment?"  And I would say it would be, but the Thirteenth Amendment was only ratified in 1865.  So is it Silberman's position that in 1864 a random free citizen could be conscripted into a job he didn't want under the Commerce Clause?

And all of this becomes even more absurd when we also remember that the term "regulate" applies equally to interstate and international commerce.  Again, this is where our reading of the text can be warped by modern precedent, for the Court has never read the international commerce clause half as broadly as the interstate commerce clause.  For instance, in Wickard v. Filburn a wheat farmer was told that he could be prevented from growing wheat for his own personal consumption on the theory that if he did not grow his own wheat he would be forced to buy it from others, and thus his growing of wheat affected interstate commerce.  But no court has held that we could therefore prevent a man living in the Ukraine from growing wheat for his own use because it will affect international commerce with America.  And does anyone believe that our government can command a man in China to buy a certain product?  (Indeed, if Obamacare is upheld, I have a delightfully simple way to solve the problem with our chronic trade deficit: just pass a law requiring everyone in the world to buy more American products.)  But so I suppose Silberman would be forced to claim that to "regulate" meant one thing internationally, and another domestically./

So in short, Judge Silberman's interpretation of the term "regulate" would lead to the absurd results of forcing a person to travel across state lines against their will, to work at a job not of their own choosing (prior to ratification of the Thirteenth Amendment) and would allow us to command citizens in other countries to buy American.  Although that last possibility definitely has its appeal, it is nonetheless an absurd definition of the term "regulate" and therefore, it is wrong.  And the travesty of it all is that our discussion of the Commerce Clause has become so divorced from the original text and what it plainly meant, that it is hard for modern minds to even recognize the absurdity of Silberman's interpretation.

And there is one more problem.  It is presumed in the construction of language in the Constitution (or any statute) that the same word has the same meaning in all contexts.  So let me call your attention to Article I, Section 8, Paragraph 14:

The Congress shall have Power… [t]o make Rules for the Government and Regulation of the land and naval Forces;

Now at first glance it seems reasonable to interpret the term "regulation" as allowing for creation.  Certainly Congress has the right to create a military, right?  But here's the thing; in the two paragraphs before it, the Constitution makes specific reference to that power:

The Congress shall have Power… [t]o raise and support Armies; … [t]o provide and maintain a Navy;

So if the word "regulate" meant to "create" then there would be no need to specify the right to raise an army or provide a navy.  It would be implicit in the term "regulation;" indicating that the founders did not believe that the word "regulate" included creation.  And as I said before, the courts avoid interpreting a provision of the constitution or a statute in a way that renders other parts superfluous or unnecessary.Besides, if regulate meant to create, then what exactly is a well-regulated militia?

No, Judge Silberman, far from there being "no textual support" for the claim that to regulate is not the same as creating, on balance, the opponents of Obamacare have the better textual argument—but particularly if we remember what the Constitution actually says, and not merely what the Supreme Court has said about it.

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* That phrase is from William Esckridge, Jr. & Phillip Frickey, The Supreme Court, 1993 Term—Forward: Law as Equilibrium, 108 Harv. L. Review. 26, 97-108 (1994).  I wrote out the full citation because that part of the article is a classic, listing many of the canons of textual interpretation followed by the Supreme Court along with cases applying them.  Bluntly I recommend that every working lawyer keep a copy of it on his desk.

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Also, you might have noticed I have deployed a similar argument on conscription in the past.  But in that case we were talking about the reach of the necessary and proper clause, so it is similar, but not completely repetitive.

[Posted and authored by Aaron Worthing.]