Friday, July 30, 2010

The Commerce Clause, part 2: what the Supreme Court might do

As my previous post attempted to explain, both of the principal arguments as to why the ACA’s “minimum essential coverage requirement” (§1501) exceeds Congress’s commerce power concern the breadth of Congress’s authority to select appropriate means for regulating interstate commerce. One argument is that, although Congress can sometimes regulate non-commercial intrastate activity when necessary to a broader regulatory scheme (which scheme regulates interstate commerce), that authority does not extend to the regulation of inactivity. In other words, there is a fundamental distinction between activity and inactivity for purposes of the Commerce Clause, regardless of either’s impact on interstate commerce. A second (and very similar) argument is that, no matter the necessity of regulating a given activity (or inactivity) as part of a broader regulatory scheme, it is never “proper” to coerce individuals into a commercial transaction with a private third party as a regulation of interstate commerce. No matter the connection to interstate commerce, this means is qualitatively out of bounds under the Constitution.

Is either a sound argument? Sure, at least if what we mean by soundness is that it has a decent chance of success at the Supreme Court. Governing Commerce Clause doctrine would certainly permit either holding. As Randy Barnett has stated a few times, §1501’s attempt to mandate a commercial transaction is, at least in some sense, “unprecedented.” It would be relatively easy for the Court to write an opinion limiting the reasoning of Raich v. Gonzales to instances in which Congress was regulating activity (albeit non-commercial, intrastate activity) and was not forcing people to engage in a commercial transaction. I’m not saying that it would be the best reading of precedent, but it is clearly a plausible and defensible one.

(One problem for the Court doctrinally would be to explain why it is okay for the government to mandate or coerce other actions in pursuit of its enumerated powers—such requiring persons to be vaccinated, to file an income tax return, or to register for the draft—but not to acquire health insurance. Another problem would be to defend conceptually the action-inaction distinction: Couldn't one describe the Civil Rights Act, in some sense, as mandating that persons employ or serve people who apply for jobs or show up as customers at a public accommodation—that is, engage in a commercial transaction with a private third party? I think the Court could deal with these issues, but they are not insignificant.)

Given that current law would permit the justices to find that §1501 exceeds Congress’s commerce power, how likely are they to so hold?


First, there are two critical factors that are, at this point, unknowable. As Gerald Magliocca has explained (and is in the process of setting out to demonstrate in a forthcoming article The Obama Generation and the Supreme Court)—and numerous political scientists have documented previously—two critical political forces are bound to influence the Court’s decision, if only subconsciously: 

1. How popular is health care reform with the American public when the case reaches the Court?

By the time the case reaches the justices—particularly if these initial suits are dismissed or deferred on justiciability grounds—the country may have already lived with the ACA for four or five years. By then, health care reform may have proved to be a complete disaster, with scores of unintended consequences. By the same token, it could have proved to be extremely popular, reducing the cost of health insurance and improving access to care. Of course, the public’s mood about health reform would be technically irrelevant as a matter of constitutional law. But it is hard to believe that it would not affect the likelihood of the justices taking the bold step of invaliding the ACA. Just as the reports of abuse in Abu Ghraib seemed to affect the Court’s deliberations in Hamdi and Rasul, and just as the withering public criticism of the Combatant Status Review Tribunals by a reserve military intelligence officer (Stephen Abraham) seemed to influence (indeed, flip) the Court’s decision to grant certiorari in Boumediene.

2. How likely are other powerful institutions to strike back at the Court if it invalidates the ACA?

No doubt, this depends largely on the first question: the more popular health care reform, the more likely Congress and the White House are to seek some sort of retribution. But whether Republicans control the House, the Senate, and especially the White House are critical as well. Public displeasure with the Court, if not backed by politicians with a vested interest in stoking that displeasure, is apt to dissipate. But a re-elected President Obama, especially if he has majorities in both houses of Congress, could pose a real threat to the Court, especially if health care reform remains vital to his domestic agenda (or legacy). Historically, the justices have almost never attempted to block a central policy priority of the ascendant national political regime. Arguably, they tried it exactly once—from 1933 to 1937—and that story ended pretty badly for the Court, with significant damage to its institutional prestige.

At this point, these two factors are unknowable. So setting them aside, what can we say about the justices’ interest in finding §1501 outside the scope of power granted by the Commerce Clause?

First, it seems quite unlikely that any of the Democratic appointees (Ginsburg, Breyer, Sotomayor, and presumably Kagan) would vote to invalidate the ACA. None of them has shown much interest in the judicial enforcement of the federalism-based limits on Congress’s enumerated powers. Breyer and Ginsburg dissented in Lopez and Morrison, and both joined the majority in Raich. They have also dissented in the Court’s Tenth and Eleventh Amendment decisions vindicating the interests of state sovereignty. It is harder to be confident about Justice Sotomayor given her short time on the Court. But she joined the majority this past term in United States v. Comstock—which construed the Necessary and Proper Clause quite broadly—and there is nothing in her past to indicate an inclination to construe the commerce power more narrowly. Finally, soon-to-be-Justice Kagan certainly signaled in her testimony at her confirmation hearing (in particular, in her answers to Senator Coburn’s hypothetical about a federal law mandating that every American eat three vegetables and three fruits a day) that she takes a broad view of the commerce power. These four votes seem relatively safe to uphold §1501.

Second, let’s assume (though this might well be wrong) that Justices Alito, Scalia, and Thomas would find §1501 outside the commerce power. (This seems a safe bet, though Scalia’s concurrence in Raich, which gave a relatively broad sweep to the Necessary and Proper Clause, might indicate otherwise. Then again, Scalia also joined Thomas’s dissent in Comstock.)

That leaves Justice Kennedy and Chief Justice Roberts. Kennedy is rightly identified as the median justice on the current court—that is, if we create a composite ideology score that aggregates all the issues that the Court faces, Kennedy sits right in the middle. This makes him the crucial “swing” vote on many questions—but not on all questions. And on this issue, my hunch is that the Chief Justice is actually the median voter.

Why? I think the Court’s recent decision in United States v. Comstock is crucial. At issue in Comstock was the breadth of the Necessary and Proper Clause. More specifically, the question was whether Congress had the authority to enact 18 U.S.C. §4248, which permits a district court, upon application of the Attorney General, to order the civil detention of “sexually dangerous” persons who have been serving in federal prison after they have completely served their prison sentences. The Commerce Clause (and various other Article I powers) gives Congress the authority to criminalize a variety of acts. And the Necessary and Proper Clause permits Congress to create a prison to incarcerate those persons violating those criminal laws, and to enact laws that govern what occurs inside those prisons. But what power grants Congress the authority to impose civil detention after the person has completely served his prison sentence, even if he is “sexually dangerous”? Graydon Comstock argued that §4248 thus exceeded Congress’s enumerated powers.

In an opinion by Justice Breyer, the Court held that §4248 was a “necessary and proper” means to executing Congress’s Article I powers, and thus constitutional. And the opinion described Congress’s authority to select legislative means in quite broad terms: “We have since [M'Culloch v. Maryland] made it clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”  Slip op. at 6 (emphasis added). The words “rationally related” connote great deference to the choice made by Congress.

So broad was this phrasing that is caused Justices Kennedy and Alito to concur separately, and to abstain from joining the Court’s opinion (even though they joined in the judgment). Kennedy specifically argued that the Court’s opinion suggested a level of judicial review (borrowed from the Court’s Due Process Clause decisions involving rights that are not “fundamental”) that was far too deferential. But—and this is the critical point—Chief Justice Roberts still joined the majority opinion in full, and declined to join either Kennedy’s or Alito’s concurrence. That is, faced with the claim that the majority opinion was giving an overly broad sweep to the Necessary and Proper Clause, the Chief Justice was unmoved. He joined the majority in full.

It would be one thing if the Court decided Comstock three years ago, when no one envisioned the precise questions raised by ACA §1501. But the Court handed down Comstock on May 17, 2010. The states had filed their lawsuits almost two months earlier, and the constitutional questions surrounding the ACA had been thoroughly vetted on the opinion pages of several national newspapers. Supreme Court justices, particularly Chief Justice Roberts, are very smart, sophisticated actors. They read the newspapers. They generally understand the broader implications of what they write. Thus, it is hard not to read Roberts’s decision to join the Court’s opinion, without any qualification, as an important signal. (It is also consistent with the Chief Justice’s record as being not terribly interested in vindicating claims of state autonomy or state sovereignty.)

Again, at the end of the day, some critical factors relating to how the Court is apt to handle this question—namely, the popularity of health care reform and the capacity of other institutions to threaten the Court—remain unknowable. But given what we do know now, there are significant indications that five justices —Ginsburg, Breyer, Sotomayor, Kagan, and Roberts—would vote to reject the states’ claim that the minimum essential coverage requirements exceeds Congress’s commerce power (as augmented by the Necessary and Proper Clause). And that would sink the states’ principal constitutional challenge to the ACA.