Reviving "Pretext" Analysis in Enumerated Powers: Why Verrilli is Right to Up the Ante on Severability in the Healthcare Litigation

The most appropriate limit on Congress' enumerated powers was stated 193 years ago by Chief Justice John Marshall in McCulloch v. Maryland, 17 U.S. 419, 424 (1819) -- and thereupon ignored for the next two centuries:

"[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal...to say that such an act was not the law of the land."

As my added emphasis indicates, the critical limit on Congress' "necessary and proper" implied powers is a motive-based limit: If Congress regulates some intrastate and non-commercial activity (or inactivity) on the theory that the regulation is necessary and proper for regulating the interstate economy in (for instance) insurance, then Congress had better really believe in the proffered causal link.

The United States' reply brief on severability argues that the individual mandate is not severable from the "guaranteed issue" and "community rating" provisions of the ACA, a move that inspires criticism from Abbe Gluck and Michael Graetz in the New York Times. But, after the jump, I will explain why I believe that Verrilli made precisely the right call on severability. The reason is that, (a) despite its neglect, "pretext analysis" is the only viable way to define Congress' implied (as opposed to enumerated) powers and (b) arguing that the mandate really is not severable from the undoubtedly commercial and interstate provisions of ACA is the only way for the Government to put its money where its mouth is -- to show that Congress' motive in enacting the individual mandate was really to shore up the financing of insurance. Borrowing from Caleb Nelson's great article on the history of motive analysis in constitutional law, I will also say a word about why "pretext analysis" has been neglected and why such neglect ought to stop.

1. Why is pretext analysis the only viable way to control Congress' implied powers under the Necessary & Proper clause? The reason is simply that there are, and always have been, a lot of implied powers. Congress can create banks, punish the robbery of the U.S. mails, hire clerical assistants for tax collectors, and so forth, all as ways to accomplish its enumerated ends. Developing a lot of "bright-line" rules to limit particular exercises of these implied powers is like playing jurisprudential whack-a-mole, forcing the Court (or the Solicitor General) to make up all sorts of implied limits on Congress to anticipate wacky "can-Congress-make-people-buy-broccoli" hypos. The answer, of course, is "it depends." But this is not an answer that sits well with a Court formally committed to placing some limit on Congress.

A better answer is, "if Congress imposed the 'broccoli mandate' because it genuinely believed that some interstate commercial problem existed -- that is, a problem that the states separately were incompetent to solve -- then, yes, Congress could force citizens to buy broccoli. Otherwise, no, Congress could not force people to buy broccoli." For this answer to be effective, of course, the Court has to be prepared to take pretext analysis seriously: if some substantial effect on interstate commerce is proffered to justify a law, but every rational person knows that that Congress did not give a rip about that effect, then the law has to be struck down. Since Katzenbach v. McClung (1964), when the codification of Martin Luther King's "dream" was reduced to the goal of maximizing the shipment of Hormel canned beef across state lines, pretext analysis has been honored in the breach. It is time to beef up pretext analysis by having the Government stand or fall by the genuineness of Congress' motive in linking the mandate to the regulation of the interstate market for .

2. Why is Verrilli's rejecting severability necessary and proper for reviving the pretext argument? Gluck and Graetz are mystified about Verrilli's decision to argue against severability of the mandate from guaranteed issue and community rating. "It’s not clear why the Obama administration has chosen this course," they note in their op-ed: "Perhaps it made a strategic choice to raise the stakes of striking down the mandate by asking the court to also invalidate the law’s more popular provisions." Nope, there is a reason much closer to the constitutional merits: If the mandate is really defended as necessary and proper for the regulation of interstate insurance markets, then the mandate should not be severed so easily from the regulation of those markets.

Both severability and "pretext analysis," after all, are about Congress' intent. If Congress really did not think that one measure was necessary for the other to do its good work, then why should the Court believe that one measure is "necessary and proper" for the other? Absent that link, of course, the regulation of local and non-commercial inaction cannot stand as regulation of interstate commerce.

3. Is there any hope of reviving pretext analysis? I think so, but it helps to understand why such analysis languished so long under a cloud. Caleb Nelson's superb account of now-bygone theories of judicial review precluding such analysis suggests that it is high time for a revival of pretext analysis in the jurisprudence of enumerated powers. After all, the Court nowadays looks at legislative motive all the time -- not only in statutory interpretation writ small, but under the Equal Protection clause and the First Amendment. As for all of those old precedents stating that Congress' motive or purpose is irrelevant, if one looks carefully one will see that, from Veazie Bank v. Fenno to Darby, they all concern express powers of Congress -- statutes that fell literally within some enumerated power by (for instance) blocking the movement of goods across state lines. None of these precedents deal with implied powers to regulate "substantial effects" on commerce from intrastate and local activities -- that is, the power of Congress with the most bite under the commerce clause. It is that "substantial effects" power that needs to be cabined. Why not go back to the prescription of Chief Justice John Marshall to do so?

But such a return requires some sacrifice: Verrilli was right to sacrifice severability of mandate from market to show that Congress' heart was in the right place.