Many on here have written excellent diaries citing dozens of cases. Even as an attorney it is hard to keep up as there is so much legalese. I try to write (even in Court) in Plain English. I think the diarists have done a good job of that. I do not though know of any diary that gets into the historical significance of the Supreme Court's consideration of the Individual Mandate.
I wanted then to consolidate what I know of Constitutional Law and possibly provide an overview of why the Jurisprudence today is being cited, and why a decision could seriously undermine other possible programs and powers due the importance of the Commerce. Of Course it all depends on how any decision is written.
Note I am not a Constitutional Lawyer. I do enjoy it though, and was lucky enough to have an excellent professor, I hope then to the extent I am off someone can Correct me.
My first thought was as a political quagmire I thought that the SCOTUS would punt on this issue and find a jurisdictional problem or the like; I was personally surprised that the Court would take up this question. I have commented about it, but I wanted to explain the history, and why, as while there have been outliers of SCOTUS interposing into political debate they have good reason not to (Bush v. Gore; Dred Scott)
I. Nonjusticiability of Political Questions
Intro- Courts shaping their own role in deciding what to hear
This is something Courts at every level do. Justices in the real world have to think of if they really want to take on the political and social establishment of a number of states and the political parties. Or if they want to be viewed as a Partisan body and lose the luster of how we view the SCOTUS (with almost unquestioned obeyance). They generally do not want that to change and make themselves irrelevant. They know that they could do so if they went too far with a given Executive and Legislature (see FDR discussion below). They do not want to be viewed as a Political Body. They sometimes utilize the "Political Doctrine" to basically punt on a "volatile" question.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It is more notable for finding that the Supreme Court was basically the final word on the Constitution (before that they were not); but they also tackled and foresaw this political dilemma so it is worth noting.
Marbury formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It also served as foresight into two concerns of Political Questions. The facts of the case are fairly straightforward. At that time the Political Rhetoric exceeded the animus even of today. The Federalists and their counterparts saw themselves so differently that one Political Party might as well have been the Communist Party, the other the British Monarchists. In 1800 the "Federalist" party lost Congress and the Presidency to Thomas Jefferson. However, they retained power (through their appointments) of the Federal Courts.
Marbury was (in terms of historical import beyond a name) a hack, who got lucky by the outgoing parties getting him a "cushy" job as a Judge. The problem became to become a judge you needed a "commission" to be signed, sealed and delivered. Adams signed and sealed it on his way out as president, but it wasn’t delivered. Coming in as President Jefferson had no interest in helping do so, and was not going to nomatter what the SCOTUS said. Madison then was acting in Jefferson's Cabinet. He was not going to obey the same as Jefferson and the SCOTUS at the time, the Marshall Court knew this. Their solution was to fashion an opinion where they got to jurisdiction last-rather than first as it would have disposed of the question. That is if you know you are going to say you lack Jurisdiction, generally you say that first as the rest of what you say does not really matter if you are going to dispose of the case. However, they did the opposite, and by disposing of the case ultimately last the rest of what they said set precedent.
Jefferson's view had been each branch interprets the constitution for itself. Again at the time there was not a universal view that the SCOTUS was the ultimate decider of the Constitution. The decision (before getting to Jurisdiction) changed that and created the idea that the SCOTUS was empowered with Judicial oversight of the Constitution over the other branches. Now the Supreme Court was essentially in charge of what passed constitutional muster. I glossed over the holding/analysis as it is not of import to this diary much has been written about it. For this diary I only wanted to focus our lay the foundation for the development of the Court and here the Political Doctrine. There is though quite a bit of debate as to whether this doctrine of Judicial Review was made up by Marbury.
Either way, as our system has evolved, we took on the British Common Law Model (except Louisiana) and recognize "Stare Decisis" which in a nutshell is the idea that if the Supreme Court decides something, it is the law, and Courts later will respect that decision. On the State law if you live in say the 8th appellate district, if you get into a car accident and there is a decision from the 8th appellate district about who you can sue, you be sure that will be used if what you try to do goes against it. That kind of decision would be thought of as "Mandatory" authority. Other examples of Mandatory authority in a State Court would be from a higher Appeals Court that Court is a part of, the State's Supreme Court, or the SCOTUS. If you are say in the 8th District Court of appeals in Ohio, you could cite to the Northern District Federal Court, but that would only be persuasive. It would be thought more persuasive than say a Case from a different state, but still not binding. That is why you have citations in any legal brief or discussion of other cases, the Judges want continuity in the law.
Getting back to Marbury, beyond beginning judicial review I note this Decision as it essentially foresaw two political problems. Justice Hand authored his own opinion. He essentially said: beware social upheaval nothing gives the Court the right to do this in the Constitution, so since we made the power up we should exercise it sparingly. Do it only when absolutely necessary. As he foresaw the problems that would come if the SCOTUS was used to second guess everything that the other Branches did.
That essentially gave rise to the Political Doctrine. Marbury's various opinions anticipated two strands of modern political/legal concern. First, that some maters are textually or structurally committed to the unreviewable discretion of the political branches (constitutional interpretation- something clearly described in the constitution as a power of the executive, the SCOTUS should stay away from). Second, some legal questions out to be avoided to prevent judicial embarrassment (prudential consideration). Essentially, wherever there is a serious question about the willingness of other branches to obey a court order, there’s a serious concern and unwillingness to consider by the SCOTUS.
Another "Modern" Strand suggests resolution of issues ought to be avoided where they are too controversial or could produce enforcement problems or other institutional difficulties. This is why I was personally surpised that the Court got involved in Bush v. Gore, or at present.
A seminal case in the reasoning of a Political Doctrine Question is Baker v. Carr. This matter involved the State of Tennessee, the facts are unimportant, the language used is though as it is often cited to. "A textually demonstrable constitutional commitment of the issue to a coordinate political department” another strand “ lack of judicially discoverable and manageable standards for resolving an issue”. That is difficult language for any Lawyer, Student of Law, etc. To understand it you really have to dissect it (as I would suggest for any law) “Textually demonstrable commitment” A commitment found in the constitution. If you look at the constitution does it commit the decision to the President or Congress of the federal government? Final Responsibility on the matter in one of the branches so they want to avoid interference with the business of the other branches of government. “Coordinate political department” another branch of the national or federal government.
Obviously this is not always the case. (Dred Scott, Bush, Nixon (Souter actually quoted the "Coordinate language above in his opinion", etc.)
I am further surprised as the justices recognize the political issues. At oral argument yesterday Justice Scalia in banter regarding the "rest" of the bill and its expansion of current programs in considering Mr. Clement's "coercion" argument:
MR. CLEMENT: . . . What's telling here, though, is 26 States, who think that this is a bad deal for them, actually are also saying that they have no choice but to take this because they can't afford to have their entire participation in this 45-year-old program wiped out, and they have to go back to square one and figure out how they are going to deal with the visually impaired in their State, the disabled in their State -
JUSTICE SCALIA: Mr. Clement, I didn't take the time to figure this out, but maybe you did. Is there any chance that all 26 States opposing it have Republican governors, and all of the States supporting it have Democratic governors? Is that possible?
MR. CLEMENT: There's a correlation, Justice Scalia.
Regardless they have chosen it appears to take the case on. What is now important is the "Commerce Power" as it may be at stake. However, I would caution anyone who thinks that it will be just like Bush v. Gore. I am no SCOTUS Justice, and I see how what they decide and how they do it could either have a major effect on their public opinion (without it they become irrelevant- they have 20 bailiffs just like in the Mental Institution Orders, states would not comply but there was simply nothing the SCOTUS could do, nor did they want to). They know this and will do everything they can to avoid looking like a Conservative apparatus. They might surprise us all despite Oral Argument.
II. The Commmerce Power
Does Congress have the power to enact something under Article 1 Section 8? (which essentially have allowed for the Social Programs many rely on, to various crime regulations as it has developed). The Interpretation from 1824 to 1936 (by the SCOTUS) was that Congress can’t regulate wages and hours of say wholesale butchers or prohibit sugar monopoly because manufacturing is not commerce for example; if they decided it differently then they felt that states would have no place/import in their laws. In United States v. Knight the SCOTUS found production, mining, and agriculture aren’t commerce, even though they’ll be shipped across state lines so Congress can’t regulate them. So they wouldn’t be able to regulate labor. Obviously something changed that. It was a threat to the SCOTUS because they were interfering so much with the "New Deal".
In 1937-1995 the Commerce Power developed into what we know today. I say 1995 as the Rehnquist Court had some decisions that offered a bit of an indication that the Court would not allow it to reach anything (although I would challenge anyone to think of anything the Commerce Power cannot reach based on the Decisions I cite- ie when you aggregate any individual activity it affects commerce). Officially there were/are limits but unofficially again I had a professor who challenged us to think of anything even digging a hole in your back yard using a rock you found in your backyard I remember him saying how that could be regulated based on the below decisions (aggregating if everyone stopped using shovels, shovels are an important tool, sold intrastate, etc. etc. you can continue to create inferences until it affects commerce quite easily).
Prior to 1937 though, the SCOTUS was happily going along striking down minimum wage regulations and such, as well as other aspects of the New Deal. Eventually, President Roosevelt (FDR) had enough; just three weeks after defeat in the railroad pension case, the Roosevelt administration suffered its most severe setback, on May 27, 1935: "Black Monday". Chief Justice Hughes arranged for the decisions announced from the bench that day to be read in order of increasing importance. The Supreme Court ruled unanimously against Roosevelt in three cases. There was a Justice Roberts on that Court who consistently ruled against the New Deal.
Glossing over some other cases speeches, and rhetoric, the Court Packing Plan was decided and actually FDR started to move on it. Essentially to get the New Deal through, via the Commerce Power, FDR would add justices (which essentially threatened to import of the Supreme Court- they ignored the Political Doctrine, and had gone to far.) Suddenly that same Justice Roberts changed his mind on EVERYTHING including (for example a year later he no longer believed state’s minimum wage law violated the due process clause cuz you had a right to sell your labor anymore). This is known as the "switch in time that saved the nine” because he became the decisive vote in favor of the new deal, we still have nine justices (although that is not a constitutional requirement). But, Roberts, and the others needed a mechanism to validate regulations from everything from production quantities to child labor.
As a result the Commerce Power began as Constitutional and expanded without question until 1995. The case discussed as essentially the cornerstone is Wickard v. Filburn and is a case you will undoubtedly see in any decision regarding the ACA. It was decided in 1942. At this point the Court had began to acquiesce to the Commerce Power, but this really expanded it to a point where virtually anything could be done. The test created by Wickard became the law that Congress could act if "The activity can be reached if there’s a substantial economic effect on commerce [through the Commerce Clause". But the aggregation they added is what made it unofficially extend to virtually any act you can think of and likely any act you can. The facts show how far reaching the Commerce Power became/is. Filburn was a dairy farmer in OH. He sued the Secretary of Agriculture to stop enforcement of a marketing penalty based on an act which set a quota for wheat he could produce. He had exceeded that quota not for intrastate commerce, but to feed his livestock, use for seed, make flour for home consumption and sell some, he exceeded his quota by 16 bushels and was fined $117.00. The Problem was could Congress under the Commerce Power actually interpose an act that on its own had no relationship or effect on Congress?
The Solution was a serious stretch of Law, that has not been overturned and is the basis for many of Congress's actions/acts/regulations and why the SCOTUS should fairly easily say "yes" Congress can do this (the ACA- along with other decisions). It was that by Aggregation (not considering Filburn on his own but all like Filburn, the hundreds, the thousands) there was a substantial effect. When you consider that you can aggregate any activity to such a level, there really is no item that could not be considered. Consider again my hole digging hypothetical. Try to think of another. When you do ask if in aggregating any aspect of what you are doing does any part of it relate to Commerce, the answer is probably "yes". If you can think of any action that does not when aggregated, you would have made better oral argument than the Government in Lopez (discussed below) in which they could not name a single action that could not be touched (the government admitted this to the SCOTUS). Say, you throwing away a newspaper. Well under Wickard, in the Aggregate every day Millions throw away newspapers, that affects pollution and other states commerce. A developer is not going to want to come from another state and place a mini-mall next to a heap of newspapers. States need places to put them, landfills affect the desirability of travel to and commerce of those states with the largest, etc. etc. you get the idea. It was a very large stretch. But needed at the time, and I would argue after. To Filburn the Court decided “That his own demand for wheat may be trivial by itself, but the aggregate of people like him adding to demand and the wheat problem is not trivial”. In other words his homegrown wheat competes with wheat in commerce because he doesn’t need to go out on the market to buy it. So you writing your own newspaper, in the aggregate if you wrote your own newspaper only read by yourself, well taking all those like you, it would affect those newspapers that are on the market and limit the need to buy. To an extend then it is a bit disturbing as argument can be easily made there was no limit. But at the same time I would argue what was done with the Commerce Clause was necessary.
Beyond Social Programs mentioned or regulatory agencies, the above (as stated in Lopez) ushered in an era where things that had been local were now carried on in a national scope. This was pivotal to striking down Jim Crow laws (local laws, or policies of an individual restaurant or Motel (two of my example SCOTUS cases). Heart of Atlanta Motel v. United States. Motel owners in Atlanta wanted to refuse African Americans the ability to stay at their Motel. The Court upheld the law against a Challenge based on its constitutionality under the "Commerce Power". The reasoning was in part their discrimination impedes interstate commerce- It impedes interstate travel both in impairing their convenience and discouraging travel of African Americans. So the power of commerce to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination that might have a substantial and harmful effect upon that commerce. Similarly in Katzenbach v. McClung the SCOTUS Court upheld the application of title II to a restaurant in Alabama with a seating capacity of 220 and 11 blocks from an interstate highway. The reasoning was similar. African Americans at this restaurant couldn’t buy prepared food served on the premises except in an isolate and unkempt restaurant, this discourages travel and obstructs interstate commerce because you can’t travel without eating.
1995- PResent? (Rehnquist Court- Roberts Court and the ACA?)
In 1995 the SCOTUS decided United States v Lopez. Lopez challenged a statute enacted under the Commerce power that involved criminalization of having a gun in a certain area of schools. The Court slightly changed the Commerce Clause jurisprudence as they said that having a gun is not economic activity able to be regulated by Congress’s power under the Commerce clause. The majority opinion stated: “Even under our expansive modern interpretation of the Commerce Clause Congress regulatory authority is not without effective bounds.” Again, at oral argument the proponents of the bill could not name a single act that could not be reached. In reality the law could have been upheld if written slightly differently. The statute should’ve said “no possession of a gun in a school zone, any part of which has been shipped in interstate commerce” They just got lazy and left that part out apparently.
As to the "substantial relationship" to Commerce in deciding this limitation the Majority said basically: yeah, maybe guns in schools do effect education, maybe there is an economic effect when you look at education in the aggregate (arguments of proponents), but if we find that this is a Constitutional use of the Commerce power there would be nothing that Congress cannot do, they could proscribe a curriculum because that effects schools. In striking this unlimited power, or rather beginning to put some brakes on it the Majority further stated “ to uphold government's contention we would have to pile inference upon inference in a manner that would convert Commerce clause authority into a police power retained by the states."
This case is taught in I would think ever law school in the United States when discussing the Commerce Power. As it was truly the first time that some limitation was imposed. Why depending on how/why the ACA is dealt with it will become of immense import even if the Court says that it is limited only to that case (a legal fiction).
Souter authored his own opinion as he foresaw the fact that there were risks in getting between Congress and those bills they sought to pass. He echoed the concerns that stretched back to 1937. In his opinion he thought to remind the Court that the reason we let Congress do virtually anything is trying to interpose the Court between Congress and the Commerce clause may be the end of the Court (as they learned in 1937)
Justices Kennedy and O’Connor opinion was a concurrence, carefully drafted as well. They were not so obtuse as to ignore the import of affecting the Commerce Clause. Essentially they agreed the law was unconstitutional (the gun law). However, they said in part what Souter was saying- that we don’t want a return to 1937. “The court has an immense stake in the stability of our Commerce Clause jurisprudence as it’s evolved”
Constitutional Law Scholars (as I am sure they are now on pins and needles) had a few views of Lopez.
1.)Fleeting meaningless declaration by the Court that states were nice and that Congress should add the jurisdictional element.
2.) If Kennedy and O’Connor are saying we’re not going back to 37 maybe we really are
That's about as far as I can take you. Because the Commerce Power has served as the Basis for Social Security, Medicare, the EPA, and other Governmental Programs and agencies, and this Court's awareness of the effect of continuing what the Rehnquist Court started, it should be interesting. But, that is why there is such real consternation as depending on the holding as to the Individual Mandate of the ACA and other parts, all of those programs could be again questioned.
Fri Mar 30, 2012 at 8:02 AM PT: Update: I wanted to add a bit to explain somewhat why people would be saying things about "Judicial Activism". Or citing the Case of Lochner. In law school Students usually read a case called "Lochner v. New York". Decided in the 19th Century. The reason is basically because it is supposed to shock and is considered one of the two worst decisions ever made by the SCOTUS (I would say since there may be a few more in the last 10 years the other "worst" are the "Slaughterhouse" cases, although there are plenty of bad ones ex Buck v. Bell Majority opinion upholding forced sterilization saying "three generations of imbeciles is enough"). Lochner comparisons are pejorative and synonymous with Judicial Activism because the Court went way beyond what the 14th Amendment actually said and read into it this Right of Contract to strike down a law that was clearly a valid exercise of Police Power. The law they struck down was regarding maximum hours for health considerations of bakers (60 hours). The question is is this a valid exercise of Police Power. Of course! But, the court decided their view of the right to contract was more important and read something into the 14th Amendment. The dissents have it right. Of course other cases have done the same that many like (it could be argued that Roe v. Wade made up some law). But this was so clearly wrong when you hear it mentioned it stands for a likening of whatever is in the sentence to Judicial Activism standing in the way of legitimate legislative purpose. Depending on the decision don't be surprised to hear comparisons to Lochner.