Yesterday, Justice Thomas, joined by Justice Scalia (except for one footnote), issued a dissent from the Court's denial of certiorari in Alderson v. United States, a case involving the constitutionality of 18 U.S.C. 931(a). That statute makes it unlawful for any person "to purchase, own, or possess body armor, if that person has been convicted of a felony that is . . . a crime of violence." The statute defines "body armor" as "any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire." Alderson claimed that his conviction was unconstitutional because 931(a) exceeds Congress's enumerated powers. The Ninth Circuit upheld his conviction, holding that the "jurisdictional hook" in the statute--requiring that the possessed body armor have been "sold or offered for sale, in interstate or foreign commerce"--brought the statute within Congress's commerce power. Alderson sought review by the Supreme Court, but the Court declined the invitation. It is from this denial that Justices Thomas and Scalia dissented, arguing that the Ninth Circuit's decision had effectively nullified the Court's holdings in United States v. Lopez and United States v. Morrison.
Because the case concerned the scope of Congress's commerce power, many have speculated that Justice Thomas's opinion might signal something significant concerning what the Court would do with the ACA. I don't think it signals much at all--or at least anything we didn't already know.
First, the issue in Alderson was quite different from that presented by the ACA's minimum coverage provision. The Alderson question--and one the Court will need to address sooner or later--concerns the significance of so-called "jurisidictional elements" like those in 931(a). In both Lopez and Morrison, the Court noted that the challenged statutes lacked such elements: language that would limit applications of the statutes to instances with some sort of a closer connection to interstate commerce. But jurisdictional elements like those in 931(a) are largely meaningless, for they fail to limit the scope of the statute in any way. All body armor has been "sold or offered for sale, in interstate or foreign commerce" (with the possible exception of homemade body armor, if such a thing exists). So something in the Court's doctrine has to give. Either Lopez and Morrison are hollow forms, or there is some limit to when jurisdictional elements will bring otherwise unconstitutional statutes within the commerce power. This was the basic point of Thomas's dissent.
The Commerce Clause questions posed by ACA 1501(b) are quite different. They involve, among other things, (1) whether the commerce power extends to the regulation of "inactivity," (2) how one defines the relevant "market" that Congress has set out to regulate with a given regulatory scheme, (3) the deference courts should grant Congress in determining the necessity of a certain form of regulation in accomplishing its broader regulatory goals, and (4) whether holding 1501(b) constitutional would effectively mean that there is no limit to the commerce power.
Moreover, even if Justice Thomas's dissent was some sort of signal as to how he would vote when the ACA reaches the Court, was that ever really in doubt? Justice Thomas is on record as believing that Congress lacks the authority to regulate economic activities like manufacturing and agricultural production. For him, the minimum coverage requirement is not even a remotely close case. Justice Scalia might be a closer call, especially in light of his concurrence in Raich. But again, most assume (and I think rightly) that he is not the swing vote on the ACA. I think it is safe to assume that he will vote to invalidate it.
Thus, if yesterday's opinion is relevant to the ACA litigation, it is more in the decisions of Justice Kennedy and Chief Justice Roberts not to join Justice Thomas's dissent. But again, drawing any sort of meaningful inference from this is quite problematic. There are myriad reasons the justices might have had for voting to deny here. First, the jurisdictional element question is a difficult one, and they might want the issue to percolate further in the lower courts, especially as it concerns the felon-in-possession-of-a-firearm statute. Second, there is currently no split in the lower courts on the constitutionality of 931(a). Third, they might have seen that granting in this case would have triggered precisely the intense speculation concerning the ACA that Justice Thomas's opinion has partially spawned. And this, in turn, would muddy the Court's ability to resolve this distinct (and distinctly important, as it implicates hundreds of federal statutes) question, free from any ACA related-speculation overhang.
In all events, there were probably scores of reasons a justice might have voted to deny cert that have nothing to do with his views on the constitutionality of the ACA. Thus, it is largely a fool's errand to infer anything at all from what they did yesterday. In the end, I think yesterday's opinion in Alderson tells us next to nothing about how the Court will decide the questions posed by the ACA, or at least nothing we did not already know.
