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 Modern Council of Revision

At the Constitutional Convention in Philadelphia in 1787, a few delegates proposed the adoption of a Council of Revision. The Council was to consist of a small group of high officials (mostly judges) whose job it would be to determine the constitutionality of any law under consideration by Congress. The purpose of the Council of Revision was to keep in check the dangerous excesses of popular majorities. In the end, cooler heads prevailed, and the Framers wisely rejected this proposal.

However, what we have today is an unstoppable U.S. Supreme Court fully determined to pass judgment on just about any significant Congressional enactment. Nearly every statute of consequence now has to meet the approval of a handful of these unelected, lifetime officials. The recently completed term of the Court is replete with examples of this -- most egregiously, the Citizens United case back in January which gutted the McCain/Feingold Campaign Finance Law, a law based upon extensive hearings and findings by Congressional committees. And a most important new piece of legislation, the Health Care Law, is being challenged by teams of conservative lawyers and state attorneys general who have every expectation that the Supremes will have lots to say about whether that Law is permissible or not.

Thus, for all practical purposes, we have allowed the old Council of Revision to become part of our system of government even though it was specifically rejected by the much venerated Founding Fathers. So much for the original intent of the framers of our Constitution.

George Dargo

Choosing the Next Watchman

In a recent New York Times op-ed, Geoffrey R. Stone, of the University of

Chicago, called attention to the disingenuousness of the argument that judges—in
particular, Supreme Court justices—are ever merely implementing the “original
meaning” of the Constitution. Indeed, every time a pundit or a politician
advocates for the appointment of judges who will “strictly construe” the
Constitution, we should remember there is not a judge on the Court—now or
ever—who did not believe he or she was not strictly construing the Constitution.
Whether a commentator agrees likely has as much to do with his or her feelings
about the result as it does the methodology the judge employed to determine the
meaning of the Constitution.

We will have another opportunity to revisit these issues when President Obama
announces his nomination of a successor to Justice John Paul Stevens. He has
said, as Presidents do, that he has no litmus test for potential nominees. At this
writing, two federal court judges—Merrick Garland of the Court of Appeals for
the District of Columbia Circuit and Diane Wood of the Court of Appeals for the
Seventh Circuit—as well as the Solicitor General, Elena Kagan, have been named
as the leading candidates.

Each of these attorneys attended an elite law school, clerked for a U.S. Supreme
Court justice, and has had a storied legal career. Garland is a former federal
prosecutor whom President Clinton nominated for the bench in 1997. Wood is a
former law professor and lawyer in the Clinton Justice Department; President
Clinton nominated her for the bench in 1995. Kagan worked as a lawyer in the
Clinton administration and was dean at Harvard Law School before assuming the
Solicitor General’s post.

As Timothy Egan, writing in the New York Times, recently noted, and as Renée
Landers and I discussed in Jurist following the nomination of Justice Sonia
Sotomayor, debates about strict construction and litmus tests aside, the Supreme
Court is sorely lacking in diversity of experience. With the retirement of David
Souter last year, there is no justice on the Court with significant experience in
state government. With Justice Stevens’s retirement, there is no justice who did
not attend either Harvard or Yale for law school, and none who has not spent a
significant part of his or her career working in either academia or for the federal
government.

Of the three leading candidates, only Judge Wood was educated outside of the
northeast, having attended the University of Texas for college and law school.
Why is this important? Because, when all the justices share similar educational
and professional experiences, the Court as a whole may be missing legal
perspectives informed by, say, the experience of having attended a law school
where doctrine is as important as theory, or of having worked in private practice
or in a state court system, where most American lawyers spend their days and
most cases, civil and criminal, are tried.

“In the end,” as Professor Landers and I wrote last year, “by confining the
shortlist of potential nominees to those lawyers with certain backgrounds,
Presidents overlook the opportunity to add to the Supreme Court another kind of
diversity, one that may be just as important as racial and gender diversity. These
Presidents deprive the public of justices who may see the world and the legal
issues it presents in ways that are different and more helpful than those justices
whose views on the law were shaped by essentially similar educational and
professional experiences.”

Lawrence Friedman