April 3, 2012--Commerce Clause

The debate within the Supreme Court about the constitutionality of the Affordable Care Act (Obamacare) will hinge on its views about the meaning and limits of the Commerce Clause of the U.S. Constitution.

The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Key here is the clause "among the several states."

The question before the Court is: does the Affordable Care Act do that--regulate commerce among the states?

To non-constitutional scholars (me very much included) the answer should be simple--health care in the United States represents at least 16 percent of our total domestic economy; and the care one receives crosses state lines in many, many ways--you may be a citizen of New York and pay for medical insurance there but require treatment while visiting Florida; your doctor may be practicing in California but was trained in Ohio; the CAT scanner used to diagnose you in Illinois may have been developed and manufactured in Connecticut.

Beyond this there are market issues, decidedly interstate one, including the costs of care and the need in some ways to contain and regulate them.

But things are not that simple. There is a long history of debate within the Supreme Court about the meaning of the Commerce Clause and its application in a continuously changing policy environment. For example, during the Great Depression and the administration of President Franklin Roosevelt, many parts of his New Deal legislative agenda were claimed to be constitutional because they effected interstate commerce--commerce among the states.

In 1936 Roosevelt and Congress were implementing New Deal policies and the Supreme Court, to illustrate, in Carter v. Carter Coal Company, struck down a key element of the New Deal's regulation of the mining industry on the grounds that mining was not "commerce."

After the Presidential and Congressional elections of 1936, Roosevelt began an assault on what he regarded as the Court's anti-democratic decisions. In the preceding years, the Court had struck down a long list of progressive legislation--minimum-wage laws, child labor laws, agricultural relief laws, and virtually every element of the New Deal legislation that had come before it.

After winning reelection in 1936, Roosevelt proposed a plan to appoint an additional Justice for each sitting justice over age 70. Given the age of the then current justices, this would have allowed a Supreme Court of up to 15 justices. Roosevelt claimed that this was not to change the rulings of the Court, but to lessen the load on the older justices, who he said were slowing the Court down. This assertion, of course, was bogus--Roosevelt wanted to enlarge the Court so he could appoint justices who would uphold his legislative agenda.

There was widespread opposition to this Court packing plan and in the end Roosevelt abandoned it. But in what became known as "the switch in time that saved nine," Justice Owen Josephus Roberts and Chief Justice Charles Evans Hughes switched sides and, among other cases, in National Labor Relations Board v. Jones & Laughlin Steel Corporation, citing the Commerce Clause, upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over labor relations throughout the United States.

This now "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause, and in some sense returned to the concept articulated earlier. Central to this theory was the belief that the democratic process was sufficient to restrain legislative power. Thus one of the central issues was whether the judiciary or the elected representatives of the people should decide what commerce is.

In response to that, the Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial function. The debate over Commerce Clause jurisprudence includes philosophic differences over whether Congressional abuse of the Commerce Clause is best redressed at the ballot box or in the federal courts.

When examining whether some activity was considered "Commerce" under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce. By this logic, activities within even a single state could fall within the scope of the Commerce Clause, if those activities would have any perceivable effect on interstate commerce.

In 1941 the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. In 1942, in Wickard v. Filburn, the Court upheld the Agricultural Adjustment Act of 1938, which sought to stabilize wide fluctuations in the market price for wheat by stabilizing supply through quotas. The Court's decision rejected former decisions that seemed to focus on "Whether the subject of the regulation in question was production, consumption, or marketing."

For example, Congress could apply national quotas to wheat grown on one's own land, for one's own consumption, because the total of such local production and consumption was sufficiently large as to impact the overall goal of stabilizing prices nationally.

During the 1990s, with the Supreme Court stocked with Republicans, including Chief Justice William Rehnquist, many described the Court's Commerce Clause opinions as the "New Federalism." The outer limits of that doctrine were delineated by Gonzales v. Raich in which Justices Antonin Scalia and Anthony Kennedy (still very much on the Court) departed from their previous positions to uphold a federal law regarding marijuana of all things. The Court found the federal law valid, although the marijuana in question had been grown and consumed within a single state, and had never entered Interstate Commerce. The court held Congress may regulate a non-economic good, which is intrastate, if it does so as part of a wide spectrum of legislation designed to regulate interstate commerce.

One can only wonder out loud why Scalia and Kennedy, who held that marijuana grown in a single state should still be regulated by the Commerce Clause, why they would then not find the Affordable Care Act to be equally constitutional since medical care represents 16 percent of America's GDP and is by almost any definition interstate commerce.

To me, this can only be because Scalia, at least, is engaged in a wide-ranging effort to drastically limit what is constrained by the Commerce Clause. In other words, return the Court to its pre-New Deal days and get back to the work of repealing the New Deal and its legacy--unemployment insurance, Social Security, and ultimately Medicare and Medicaid.