Congress, Commerce and the Health Care Law

Writing in Slate in early February, Dahlia Lithwick opined:

If the odds of success for the health care law [in the U.S. Supreme Court] have tilted in recent months, it’s not because the suits [challenging the law] have somehow gained more merit. It’s because the public mood and the tone of political discourse have shifted dramatically—emboldening some federal judges willing to support constitutional idea whose time, in their view, has finally come.

That constitutional idea is that there are judicially-enforceable limits on Congress’s power under the Commerce Clause. Until the Supreme Court’s 1995 decision in United States v. Lopez, the federal courts had regarded the exercise of the commerce power deferentially—legislation would be upheld so long as Congress had a rational basis for concluding that intrastate activity would have a substantial effect on interstate commerce.

In Lopez, the Supreme Court signaled that the commerce power had at least one judicially-enforceable limit: to be subject to regulation, intrastate activity must be inherently economic. Mere possession of a gun, the Court concluded in that case, is not inherently economic.

A decade later, however, in Gonzales v. Raich, the Court confirmed that Congress could regulate even non-economic intrastate activity, if that regulation was a part of a larger, comprehensive scheme to manage a national market—in Gonzales, the market in controlled substances. Gonzales suggested cases like Lopez might remain outliers.

Now, as Lithwick observes, popular criticism of the new health care law has found its champions. In two recent cases, United States District Courts in Virginia and Florida have declared the law unconstitutional because, they reason, it does not regulate economic activity, but rather inactivity—namely, an individual’s decision not to obtain health insurance.

These courts have thus erected a new barrier to Congressional regulation under the Commerce Clause: the distinction between activity and inactivity. Setting aside the lack of precedent supporting the existence of such a distinction, it is enough to say that this new rule does not exactly lend itself to consistent application over time. Is a decision not to purchase health insurance really inactivity, when the economic consequences of that decision are measurable and, in the aggregate, have a significant effect on interstate commerce?

The effort to make and justify such a distinction is a fool’s errand. It is not the responsibility of the federal courts to protect a political majority from itself. As Chief Justice John Marshall reasoned in Gibbons v. Ogden, the first great Commerce Clause case, Congressional discretion ultimately will be controlled by the people. And, as the great Chief Justice might have predicted, the most recent national elections and even more recent polls indicate that the forces opposed to the health care law appear to need no help from the judiciary.

It remains to be seen whether the U.S. Supreme Court will agree with Marshall’s view that, where commerce is concerned, deference to our elected officials is warranted. Many commentators are, as Lithwick notes, predicting a close decision. As in so many close cases, the meaning of our constitution likely will come down to the vote of Justice Anthony Kennedy. At some point, the American people may seriously begin to wonder how it is that we arrived at this place, where one justice’s vote may deny the people’s representatives both the ability to make policy for the nation and the opportunity to change it in response to their constituents’ wishes.

Lawrence Friedman

The End of Marriage?

In “The Judicial Imposition of Same-Sex Marriage: The Boundaries of Judicial Legitimacy and Legitimate Redefinition of Marriage,” recently published in the Washburn Law Journal, Professor Lynn Wardle argues that judicial decisions invalidating same-sex marriage prohibitions by the United States District Court in Perry v. Schwarzenegger, the Iowa Supreme Court in Varnum v. Brien, and the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health

raises serious questions about the nature and scope of legitimate judicial authority to alter the state (and social) institution of marriage, about the nature of marriage itself, and about the legitimacy of same-sex marriage created by or as a result of an illegitimate judicial decree.

He condemns these decisions and expresses deep concern about whether we as a nation will survive this onslaught of what he considers unmitigated judicial activism.

Chances are, we will.

As was true of the civil rights movement in the 1950s and 1960s, when it comes to the issue of same-sex marriage, judges are not acting alone. Brown v. Board of Education may have lit the way, but it took Congressional action to effectuate the principle of equality the Supreme Court articulated in that case. Today there are more American jurisdictions that recognize same-sex marriage than Professor Wardle might have imagined ten years ago, not all of them as a result of a judicial decree.

Though, as the courts in California, Iowa and Connecticut have held, equal protection does not permit the perpetuation of discrimination for arbitrary reasons, the real shift in thinking about marriage will not be accomplished through judicial decisions. Wardle is right when he contends that the issue of same-sex marriage ultimately will be decided by the American people.

What will they decide? It may not be what the opponents of marriage equality think. Consider the announcement this week that Barbara Bush, daughter of President George W. Bush, has endorsed legalization of same-sex marriage. She is just the latest child of a prominent Republican to do so.

This is further evidence of a wider generational split: surveys show that young people are not nearly as anxious about same-sex marriage as their parents and grandparents. They are growing up in a world in which it is unremarkable to have openly gay friends, relatives, neighbors, and colleagues. These young people will one day be a political majority. And when they are, courts will have moved on to adjudicating new civil rights issues.

Lawrence Friedman