Health Care and the Commerce Clause

A friend asked me, in all sincerity, how I plan to teach National Federation of Independent Business v. Sebelius—the Health Care Cases—in my constitutional law class next spring. It’s a good question. Chief Justice Roberts’s opinion discusses and alters commerce and spending clause doctrine and elaborates on the taxing power—the case could be its own course in Congressional authority under Article I of the Constitution. (My friend also said she’s still trying to figure out whether Roberts actually called balls and strikes in Sebelius or “if he took the ball away from the pitcher and told everyone to go home because the game was over”).

What may pose the greater challenge is how to incorporate into discussion of the constitutionality of the Affordable Care Act’s individual mandate some sense of the decision’s political dimensions. Democrats have praised the decision and commentators have expressed respect for the Chief Justice’s decision to side with the so-called liberal justices. But at a certain level his decision appears motivated less by fidelity to constitutional principles than a desire to protect the integrity of an institution—the U.S. Supreme Court—that has surprisingly often in the past decade paid slight deference to the work of the elected and politically accountable branches of the federal government.

Indeed, as my colleague Louis Schulze has noted, in this case there were five votes for the proposition that an individual decision to freeload when it comes to health care, which has a demonstrable—and profound—impact on interstate commerce, is somehow not activity within Congress’s reach. This conclusion, as Justice Ruth Bader Ginsburg notes in her opinion in Sebelius, is hardly self-evident in light of the Court’s commerce clause precedents, and it arguably fails to respect the legislature’s competence to make judgments about the aggregate effect of economic decision-making. Given that, as one appeals court judge noted, “it is possible to restate most actions as corresponding inactions with the same effect,” the Court’s new activity-inactivity distinction may simply be an invitation to judges to engage in subjective assessments about the validity of a wide range of federal regulations.

As discussion begins about the long-term implications of this new commerce clause principle, it would be good to remember that experiments with formalistic constitutional doctrines that effectively cabin the federal government’s ability to regulate have been relatively short-lived. For instance, in the 1995 case United States v. Lopez, the Court held that Congress can only regulate activity that is inherently economic under the commerce clause—and then ten years later concluded in Gonzales v. Raich that Congress may regulate even non-economic activity when it is part of a broad effort to regulate a national market, effectively embracing a means by which Congress can get around Lopez. The Court may soon discover that in order for the federal government to address some of the truly national problems the country now faces, it will have to develop a way for Congress to get around its new activity-inactivity distinction, too.

Lawrence Friedman

The Health Care Cases: “Democrats Win the Battle, but Lose the War … and Don’t Even Seem to Know it Yet” or “How Chief Justice Roberts Got to Have his Cake and Eat it, Too"

I’m baffled by the reaction to today’s ruling in National Federation of Independent Businesses v. Sebelius (which is quickly attaining the nickname “The Health Care Cases.”).  Democrats seem to be rejoicing “a win,” in that the Affordable Care Act was upheld.  What everyone seems to be ignoring is the fact that the Court also held that:  (a) Congress lacked the power to enact the individual mandate under the Commerce Clause; and (b) it also lacks the power under the Spending Clause to withhold Medicare funding to states who refuse to participate in the Medicare expansion.  In crowing about this “victory” for the President, I honestly don’t think that Democrats have quite figured out the long-term consequences of what Chief Justice Roberts just pulled off today.  But, know this:  his feat today is downright historic…

Most people probably don’t care about the Commerce Clause or the Spending Clause.  These were just some words of jargon that lawyers were throwing around, and what people really cared about was whether Obamacare would still exist.  The elation to be heard outside the Supreme Court building seems to confirm this, and even the commentary by talk radio pundits in the first hours after the decision seemed to focus only on the survival of the ACA.  What folks are missing is the fact that the Supreme Court just fundamentally altered (or put back into place, depending upon where you’re standing) the balance of power between states and the federal government.

To be clear, the Commerce Clause is the source of power for the vast majority of federal social legislation.  Georgetown Constitutional Law Professor Randy Barnett, the architect of the challenge to the ACA and longtime advocate for curtailing federal power has stated that the original meaning of Congress’s power under the Commerce Clause is that it only extends to “trade in things – goods” and that it merely creates a free-trade zone among the states with Congress regulating matters within the stream of commerce.  Barnett’s theory on the ACA is that even if insurance can be deemed a “good,” it still is beyond the reach of the Commerce Clause because the individual mandate compels citizens to enter into commerce rather than merely regulating what is already in it.  By seemingly agreeing with this theory today, the Supreme Court arguably calls into question such fundamental social reforms as the Civil Rights Act, workplace safety laws, and minimum wage laws … and yet Democrats are celebrating.

Despite the impact of today’s ruling on the Commerce Clause, Democrats seem just about ready to canonize Chief Justice Roberts, given that he – and not Justice Kennedy, as had been widely expected – provided the swing vote for saving the ACA.  Little to do they know, apparently, that what the Chief Justice pulled off today was nothing short of a masterstroke.  As a longtime advocate of a conservative approach to interpreting the constitution, the Chief Justice no doubt seeks to reinforce the power dynamic between the states and the federal government.  As a former law clerk to then-Associate Justice Rehnquist, he no doubt relishes the opportunity to complete the federalism revolution his former boss started.  At the same time, though, Chief Justice Roberts also appreciates the impact of the Court’s actions on its legitimacy and has openly strived to avoid closely-divided or blatantly partisan rulings from the Court.

Today, he somehow was able to achieve those two seemingly incompatible results simultaneously.  By narrowing the Commerce Clause, he has substantially undermined the federal government’s power to involve itself in citizen’s lives; but, by casting the deciding vote to uphold the ACA’s individual mandate as a permissible “tax,” he achieves the pragmatic goal of deferring to one of the elected branches of government and showing that the Court is still above politics.  He literally got to have his cake and eat it, too, and it shouldn’t be too long until the cognoscenti begin to recognize the sage brilliance of this maneuvering.

So, for now, Democrats are celebrating.  Hopefully, the Affordable Care Act will work as advertised and provide health insurance to millions of people who otherwise would have suffered.  But, in the not too distant future, we will certainly have to reckon with the real results of today’s decision:  “The New Commerce Clause.”  Whether that occurs when the Supreme Court invalidates some crucial social policy or whether it occurs when Congress is too timid to legislate, one thing is certain: Chief Justice John Roberts will be in the SCOTUS Hall of Fame, because this guy just pulled off the Kobayashi Maru of constitutional adjudication.

Louis Schulze

"Zombie" Constitutionalism

Talk about bad and shopworn ideas ("zombies" to use Paul Krugman's nice formulation): the proposed amendment that would enable states to repeal any federal statute if approved by two-thirds of the state legislatures is a notion that came and went, in various forms, in the 18th and 19th centuries. First it was called Nullification, and then it morphed into the Secessionist craze whose 150th anniversary we are about to commemorate. The Civil War was supposed to have relegated those ideas to the proverbial dustbin of history.

This nutty notion -- if adopted -- would transform the entire structure and character of our constitutional system. The difference between the Constitution (which supporters of this amendment say they revere) and its predecessor -- the Articles of Confederation -- is that the federal government under the Constitution framed at Philadelphia in 1787 is an independent entity whose laws act directly upon the people and is not dependent upon the approval or disapproval of the states. To provide states with a mechanism for disapproving of federal laws would not only undermine the institution of Judicial Review, but it would fundamentally alter the architecture of American government as we have come to know it in the past two hundred years.

This is a very bad idea whose time came and went centuries ago. It should be so regarded.

George Dargo