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[W]hen you are changing the relation of the individual to the government in ... a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” - Justice Anthony Kennedy during oral arguments regarding the Affordable Care Act
One of the most "fascinating" aspects of the arguments presented before the Supreme Court regarding the Affordable Care Act and the individual mandate and penalty (the shared responsibility penalty), is how the Roberts Court and its members are contemplating, in truly ad hoc fashion, the transformation of the standards by which the constitutionality of Congressional action is to be judged. Indeed, the reason many of us believe the case is easily decided is not only because of the clear line of precedents from 1937 to the present, but by decisions issued by the Roberts Court and other decisions joined by the current members of the conservative bloc of the Roberts Court. I've discussed them before but it is worth revisiting.

In Gonzales v. Raich, decided just 7 years ago, the court, in a decision joined by Justice Kennedy and in which Justice Scalia issued a concurring opinion, the Court held that:

The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals. [Emphasis supplied.]
Justice Stevens, writing for the Court, was right. Wickard v Fillburn was fully on point:
Wickard [...] establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. [Emphasis supplied.]
Repeating the key words: "Congress can regulate purely intrastate activity that is not itself "commercial." In layman's terms, Congress can regulate what you do even if you are not engaged in commerce. Justice Kennedy fully joined the Raich opinion. As for Justice Scalia, he joined the result but wrote separately. But his words echo the rule stated above:
Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301—302 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39—40 (1895) (Harlan, J., dissenting).1 And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. [Emphasis supplied.]
Thus, Justice Scalia's conception of Congressional power is even more expansive than that stated in the majority Raich opinion. He says  "Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." The activities regulated need not even substantially affect interstate commerce for Congress to act according to Justice Scalia, because of the power afforded to Congress under the Necessary and Proper Clause. Justice Scalia explained:
Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” Wrightwood Dairy Co., 315 U.S., at 119; see also United States v. Darby, 312 U.S. 100, 118—119 (1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119. [Emphasis supplied.]
According to Justice Scalia, at least in Raich, "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective." (My emphasis.) Webster's defines the word "every" as follows:
... being each individual or part of a group without exception.
 

In other words, "every power" means, um, every power. My view is that Justice Scalia overstates the case. In McCulloch v. Maryland, Chief Justice Marshall explained:

If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect. [...]

If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. [Emphasis supplied.]

There is the limit—prohibited by the Constitution. In U.S. v. Carolene Products, the Court explained:
The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196, and extends to the prohibition of shipments in such commerce. Reid v. Colorado, 187 U.S. 137; Lottery Case, 188 U.S. 321; United States v. Delaware & Hudson Co., 213 U.S. 366; Hope v. United States, 227 U.S. 308; Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311; United States v. Hill, 248 U.S. 420; McCormick & Co. v. Brown, 286 U.S. 131. The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196.[Emphasis supplied.]
To repeat, "the power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution.." (My emphasis.) This is the applicable legal rule and neither Justices Scalia nor Justice Kennedy ever questioned it. At least, not until now. By contrast, Justice Thomas has consistently questioned this constitutional rule. In his dissent in Raich, Justice Thomas wrote:
Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States.” Art. I, §8, cl. 3. Ante, at 19. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California–it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.[...]

In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation. 514 U.S., at 584, 600 (concurring opinion). This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson’s home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers–as expanded by the Necessary and Proper Clause–have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.” United States v. Morrison, 529 U.S. 598, 627 (2000) (Thomas, J., concurring). [Emphasis supplied.]

Under Justice Thomas' reading of the Commerce and Necessary and Proper power, one could plausibly argue that the individual mandate violates the Constitution. But one would need to gut decades of settled precedent to do so. Such a reading would put in jeopardy our modern national state. Civil rights laws? Sorry no power for that. Environmental laws? Sorry, no power for that. Social Security? No can do. Medicare? Ditto.

But that was then, this is now, some might say. Why can't the Roberts Court develop its own limiting principles? Well, obviously they can. The Supreme Court has the final say on these things. But the question is—is there a principled way to do so? I believe the answer is no. And the answer is provided by the Roberts Court's decision in United States v. Comstock, decided in 2010. I'll discuss that case on the flip.

(Continued reading below the fold)  

In Comstock, the Court considered the constitutionality of a federal civil commitment law. The Court described the question thusly:

The federal statute before us allows a district court to order the civil commitment of an individual who is currently “in the custody of the [Federal] Bureau of Prisons,” §4248, if that individual (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” §§4247(a)(5)–(6).
Note what the statute does not address: commercial activity. Indeed, it does not address activity at all. For the person so committed is not being committed as punishment for a crime, but because he would be considered "sexually dangerous to others." As a constitutional question, this certainly seems to reach the outermost limits of government power of any kind—the detainment of persons. Short of the death penalty, there seems little that can match this awesome power of the government, any government. The Court upheld the federal statute as a valid exercise of Congressional power under the Commerce and Necessary and Proper clauses.  

And how did the conservative bloc of the Roberts Court vote in Comstock?

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Ginsburg, and Sotomayor, JJ.
And Justices Kennedy and Alito? They concurred in the judgment. In his concurrence, Justice Kennedy wrote:
Respondents argue that congressional authority under the Necessary and Proper Clause can be no more than one step removed from an enumerated power. This is incorrect. When the inquiry is whether a federal law has sufficient links to an enumerated power to be within the scope of federal authority, the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain. [Emphasis supplied.]
While we have heard many arguments regarding the constitutionality of the individual mandate, we have heard none that question the "strength of the chain" connecting it to the Affordable Care Act and thus, the valid exercise of the Commerce power. Indeed, in arguing for striking down the entire ACA, constitutional opponents of the law state that the entire law is only viable if the mandate remains intact.

Justice Kennedy continues:

[A] basic principle that the powers reserved to the States consist of the whole, undefined residuum of power remaining after taking account of powers granted to the National Government. The Constitution delegates limited powers to the National Government and then reserves the remainder for the States (or the people), not the other way around, as the Court’s analysis suggests. And the powers reserved to the States are so broad that they remain undefined. Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone.

It is correct in one sense to say that if the National Government has the power to act under the Necessary and Proper Clause then that power is not one reserved to the States. But the precepts of federalism embodied in the Constitution inform which powers are properly exercised by the National Government in the first place. See Lopez, 514 U. S., at 580–581 ( Kennedy , J., concurring); see also McCulloch , supra, at 421 (powers “consist[ent] with the letter and spirit of the constitution, are constitutional”). It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power is not one properly within the reach of federal power.

There are two points to make about this argument from Justice Kennedy. First, the individual mandate and penalty do not in any way implicate principles of federalism. No party has made such an argument and Justice Kennedy's own questioning excludes such a concern. He asked:
[W]hen you are changing the relation of the individual to the government in [..] a unique way, do you not have a heavy burden of justification to show authorization under the Constitution? [Emphasis supplied.]
Thus even Justice Kennedy could find no federalism concern with regard to the individual mandate and penalty. The second point is, in my view, the more serious one. It involves Justice Kennedy's utter disregard for settled precedent. In U.S. v. Carolene Products, the Court stated:
The [Commerce]  power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...]  And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U.S. 510, 514; Hamilton v. Kentucky [p148] Distilleries & Warehouse Co., 251 U.S. 146, 156. [Emphasis supplied.]
If Justice Kennedy seeks the overturn of Carolene Products, he should forthrightly say so.

And now we get to Justice Kennedy's bottom line about the unprecedented change in the relation of individuals with the federal government enacted by the federal civil commitment statute:

[T]his is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power.
In other words, the federal government's detention of persons not based on their current activity is a "discrete and narrow exercise of authority over a small class of persons already subject to the federal power." It is not clear to me how any honest and reasoning person could find such an exercise of power within the Commerce and Necessary and Proper power and then find the requirement to purchase insurance or alternatively, pay a penalty, to exceed that authority. Such a result would not be principled.

As for Justice Alito, in his concurrence, he wrote:

I entirely agree with the dissent that “[t]he Necessary and Proper Clause empowers Congress to enact only those laws that ‘carr[y] into Execution’ one or more of the federal powers enumerated in the Constitution,” post , at 1, but §4248 satisfies that requirement because it is a necessary and proper means of carrying into execution the enumerated powers that support the federal criminal statutes under which the affected prisoners were convicted. The Necessary and Proper Clause provides the constitutional authority for most federal criminal statutes. In other words, most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal prison system.
But Justice Alito does not explain why, after these persons, after having served their criminal sentences, are still subject to the Commerce power. He writes:
The only additional question presented here is whether, in order to carry into execution the enumerated powers on which the federal criminal laws rest, it is also necessary and proper for Congress to protect the public from dangers created by the federal criminal justice and prison systems. In my view, the answer to that question is “yes.” Just as it is necessary and proper for Congress to provide for the apprehension of escaped federal prisoners, it is necessary and proper for Congress to provide for the civil commitment of dangerous federal prisoners who would otherwise escape civil commitment as a result of federal imprisonment.
I'm not sure that passage even makes sense. How do you "escape civil commitment as a result of federal imprisonment?" Apparently, once you have been charged with a crime, you are subject to the Commerce power forever. Fair enough, but how then is a person who has, at some time, entered the health care market any different in that respect? (Setting aside the fact that health care and health insurance are clearly species of interstate commerce and criminal law is not.)

Again, there is no principled manner in which these justices can argue that the individual mandate is "different" in any way that makes it unconstitutional. It is certainly different because the regulations in question are unquestionably commercial in character. Indeed, therein lies the point—the Affordable Care Act is as clear an exercise of the Commerce Power as one could possibly imagine. The enactment of the individual mandate is as clear an exercise of the Necessary and Proper power as one could possibly imagine.

It would take the abandonment of all principle for these justices to rule otherwise.

There is one exception to this statement—Justice Thomas. In his dissent in Comstock, Justice Thomas remained consistent with his stated views:

No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power. Accordingly, §4248 can be a valid exercise of congressional authority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actually enumerated in the Constitution.

Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, see, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U. S. 1, 37 (1937) —can justify federal civil detention of sex offenders. Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce . Morrison , 529 U. S., at 617–618; United States v. Lopez , 514 U. S. 549, 563–567 (1995) . That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of Oral Arg. 21–22. 5

Here Justice Thomas' argument is at its strongest, for there is virtually no nexus to commerce in this federal civil commitment statute. For persons looking for limits to the Commerce and Necessary and Proper power, Comstock provided the ideal case.

Justices Roberts, Alito, and Kennedy declined that opportunity. (Interestingly, Justice Scalia reversed his views stated in Raich and joined Thomas' dissent. With an eye on the mandate issue perhaps?)

The Affordable Care Act case provides the worst opportunity for principled application of limiting principles to the Commerce and Necessary and Proper power. The Affordable Care Act involves a sector clearly at the nexus of interstate commerce. The individual mandate and penalty are textbook examples of a Necessary and Proper regulation to the valid exercise of the Commerce power.

This is not a difficult case. This is an easy case for principled justices.

But we're not exactly dealing with principled justices are we? Expect contortions in our Commerce Clause and Necessary and Proper jurisprudence. Let us hope that they are sui generis and apply only to this case.

Heck, the Roberts Court could cite Bush v. Gore for that.

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