Put a constitutional lawyer and a legal economist in the same room and the result is a provocative new way of showing the constitutionality of the nation’s controversial health care law.

In what some scholars consider the most important approach to understanding federalism and the Constitution in recent years, collective-action federalism is the brainchild of Neil Siegel of Duke Law School and Robert Cooter of the University of California, Berkeley School of Law.

The health care law did not inspire the development of the Siegel-Cooter theory; the two men had been working on the theory several years before President Obama signed the Patient Protection and Affordable Care Act into law. But the law offered a major opportunity to put theory into practice and to gain some scholarly reaction at the same time.

Collective-action federalism proposes a new way of understanding Article I, Section 8 of the Constitution. Section 8 contains 18 clauses enumerating the powers of Congress. Instead of viewing that section as simply a list of unrelated powers, Siegel and Cooter argue that the clauses are a coherent set designed to deal with collective-action problems that affect the general welfare.

What is a collective-action problem? When the actions of individually rational states produced irrational results for the nation as a whole, they explain. In that situation, the federal government is more likely than the states to solve the problem of interstate spillovers.

“The theory of collective-action federalism interprets the clauses of Section 8 as authorizing Congress to tax, spend, and regulate when two or more states face collective action problems,” they wrote in their initial publication of the theory. “Conversely, governmental activities that do not pose collective action problems for the states are ‘internal to a state’ or ‘local.’ ”

For example, in applying their theory to Congress’ commerce clause power — now at the core of the health care law debate — they reject the Supreme Court’s distinction between economic and noneconomic activity as well as other previous distinctions.


Instead, they argue, “The distinction between individual and collective action by the states best explains why Congress may not ordinarily use the Commerce Clause to regulate such crimes as assault or gun possession in schools. Indeed, our distinction explains what the Court has actually done in recent Commerce Clause cases better than the Court’s own proffered distinction.”

Cooter, a pioneer in the field of law and economics, supervised Siegel’s doctoral dissertation when the latter was at Berkeley. The two men became friends, and in 2005 held a workshop on constitutional law and economics.

“It started long before any of us was thinking about health care,” said Siegel, co-director of Duke’s Program in Public Law. “We were trying to make sense of Article I, Section 8. We started thinking about ways in which traditional legal constitutional arguments — like from text, history and structure — as well as economic analysis and theory could be brought together.”

During the 1787 Federal Convention, a committee of Framers was instructed to deal with problems that the states were not separately competent to deal with, Siegel said. “When you look at all of the powers, almost everything in that list gives Congress power to solve these multistate problems. The very problems that inspired the Constitutional Convention were these multistate problems.”

Cooter said they would like to inject the power of economic theory into the understanding of the Constitution in a more forceful way. A natural place to begin, he added, was with the division of powers.

“I think our aim is not to be cited by the Supreme Court so much as to affect the legal culture of the law schools in which people are trained to understand the Constitution,” he said. “In order to get people to consider an economic analysis of constitutional law, you have to get their attention. I think the title has proved effective in enabling people to see what we were about.”

As for health care and the constitutionality of the so-called individual mandate to purchase insurance, Siegel argues that a collective-action problem arises when people benefit from collective action regardless of whether they contribute to it.

When that problem’s effects spill across state borders, Section 8 authorizes Congress to require many kinds of private action.

Marcia Coyle can be contacted at mcoyle@alm.com.