The U.S. Supreme Court has scheduled a nearly unprecedented three days of arguments beginning Monday on Dept. of Health and Human Services vs. Florida, better known as the Obamacare case. Conservatives hope the five-member conservative majority, led by Chief Justice John Roberts, will strike down the healthcare act as unconstitutional, while supporters of the law hope swing-vote Justice Anthony Kennedy and possibly Roberts himself will join the liberals in upholding it.
Key to understanding the arguments for and against the law are a string of cases going back to the early years of this country, when memories of how the Constitution was written were still clear and the precise roles of Congress, the President and the judiciary were quite murky. The fundamental question is whether the Commerce Clause in Article I of the Constitution, which restricts Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” restricts Congress from passing a law requiring all citizens to buy health insurance.
Conservative justices, in particular, feel bound by the principal of stare decisis to honor the decisions of the judges who came before them. But when it comes to Obamacare those past decisions — particularly the ones upholding economic regulations from the New Deal era — will make it hard to invalidate a law that was fully deliberated by Congress and passed to regulate an interstate industry that accounts for 18% of the gross domestic product.
Few areas of constitutional law are fuzzier than the limits of Congressional power. Here are the 10 cases any observer must be familiar with to understand how the Supreme Court ultimately rules:
Marbury v. Madison (1803): The seminal case establishing the power of the judiciary to invalidate laws if they are unconstitutional. Chief Justice John Marshall, perhaps aware of the infant Supreme Court’s inability to enforce its decisions, cleverly asserted this power by striking down an act of Congress giving the court jurisdiction over politically divisive appointments. History only recalls Marshall’s bold statement, not his canny decision to keep his powder dry in this particular case:
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
McCulloch v. Maryland (1819): Opponents of the Second Bank of the United States considered it an outrageous example of Congressional overreach. To trim its wings, Maryland legislators passed a tax to be collected against any bank not chartered by the state. But the Marshall court overruled, saying the Constitution — in contrast to the earlier Articles of Confederation — gave Congress “incidental or implied powers.”
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.
NLRB vs. Jones & Laughlin Steel (1937): The Supreme Court upheld the National Labor Relations Act, a New Deal-era law requiring employers to allow collective bargaining and other practices intended to reduce labor strife. Jones & Laughlin argued the law affected purely local activities and exceeded Congressional authority. The court disagreed; if intrastate activities “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” The decision does include a warning against overreach that Obamacare foes are sure to remind us about:
Undoubtedly the scope of this power must be considered in the light of our dual system of government, and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.
Wickard v. Filburn (1942): Poor farmer Filburn just wanted to grow grain to feed his own animals on his Ohio farm, but the Supreme Court upheld a $117.11 fine for exceeding his quota under a New Deal-era law designed to prop up agricultural prices. Filburn argued that Congress had no business regulating activity that stayed within the boundaries of his own farm; Congress was in effect ordering him to engage in commerce by purchasing wheat he’d prefer to grow himself. The Court disagreed, saying “even if appellee’s activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
Heart of Atlanta Motel vs. U.S. (1964): Does regulating interstate commerce include requiring an Atlanta motel owner to accept African-Americans as customers? The Supreme Court answered yes, upholding a cornerstone of federal civil-rights legislation. “One need only examine the evidence which we have discussed above to see that Congress may — as it has — prohibit racial discrimination by motels serving travelers, however “local” their operations may appear,” the justices concluded.
Lopez and Morrison (1995 and 2000): If Wickard v. Filburn defined the far reaches of Congressional authority, U.S. v. Lopez and U.S. v. Morrison established what exceeds it. In Lopez the high court struck down a federal law banning guns near schools as being too disconnected from economic activity to qualify as regulating interstate commerce. In Morrison, a majority including Justice Kennedy struck down a federal law criminalizing violence against women, saying such laws must be directed toward the “channels” or “instrumentalities” of commerce or “activities having a substantial relation to interstate commerce.”
Gonzalez v. Raich (2005): Conservative Justice Antonin Scalia penned a concurrence to this opinion upholding a federal law that criminalized growing marijuana even though it was for personal consumption and legal under state law in California. Obamacare foes who count on enlisting Scalia to their cause should gulp at these words: “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.”
Comstock v. U.S. (2010): This one’s bad news for Roberts fans. In it, he signed off on a decision upholding a very broad understanding of the Necessary and Proper Clause, “every comma and sentence,” as Yale Law School professor William Eskridge reminded me last year. The decision deals with the power of Congress to pass a law requiring the incarceration of sexual predators in federal mental institutions but speaks to the controversy at the heart of Obamacare, namely whether Congress has broad authority to do what it thinks necessary to effect policy. Even Justices Alito and Kennedy signed off on this one, albeit with reservations.
The Necessary and Proper Clause does not give Congress carte blanche. Although the term “necessary” does not mean “absolutely necessary” or indispensable, the term requires an “appropriate” link between a power conferred by the Constitution and the law enacted byCongress.
And Scalia joined Justice Clarence Thomas in a dissent arguing the law was invalid because Congress didn’t have the underlying power to detain mental patients in the first place.
Unless the end itself is “legitimate,” the fit between means and end is irrelevant. In other words, no matter how “necessary” or “proper” an Act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than “carrying into Execution” one or more of the Federal Government’s enumerated powers.
Thomas More Law Center v. Obama (2011): This isn’t a Supreme Court decision, but it might be the most influential ruling on Obamacare because of the concurrence by Jeffrey Sutton, a George W. Bush appointee who was one of Scalia’s favorite clerks. In it, Sutton rejects the argument the federal Anti-Injunction Act, which prohibits lawsuits blocking the collection of a tax, should apply. Congress called the charge for failing to buy insurance a “penalty,” he said, and prevented the Internal Revenue Service from using many of the tools it has to collect taxes, including attaching wages or bringing criminal charges. He also batted aside the so-called “action/inaction” argument, that Congress can pass laws prohibiting activities but can’t order people to engage in an activity, namely to buy insurance. If that were a problem states would have due-process concerns about laws requiring motorists to buy car insurance. Finally, he said the nature of commerce changed irrevocably in the 20th century and the courts have recognized this:
What has principally changed over the last two centuries is commerce. As means of travel and communication have advanced, any meaningful distinction between local and national commerce has essentially disappeared, and the Court’s tolerance of congressional regulation of local activity reflects this modern reality as much as it reflects a changeable conception of the commerce power.
Sutton offered some hope to conservatives, saying it wasn’t the job of an appeals court to make the final statement on the limits of Congressional power. That job, he said, lies with the Supreme Court:
The Supreme Court can decide that the legend of Wickard has outstripped the facts of Wickard—that a farmer’s production only of more than 200 bushels of wheat a year substantially affected interstate commerce. A court of appeals cannot. The Supreme Court can decide that Raich was a case only about the fungibility of marijuana, not a decision that makes broader and more extravagant assertions of legislative power more impervious to challenge. A court of appeals cannot.
And Obamacare foes can only hope a majority of Justices will take up Sutton’s invitation to revisit old decisions.