Part
Two: The Court Attempts to Limit Commerce Clause Authority
In
the Wickard
case, the Agriculture Adjustment Act of 1938 (the “AAA”), one of the
centerpieces of the New Deal, attempted to regulate the wheat and other
agricultural markets by placing quotas on the amount of wheat that farmers
could grow for sale and for home consumption. The term “market” was used to
refer to the farmers’ consumption of wheat they grew on their own farms as well
as the commercial transactions in wheat, even if the amounts so grown for their
own use were quite small. If the farmers exceeded their quotas, penalties in
the form of fines-per-bushel were imposed on farmers who grew such “farm
marketing excess” wheat.
Farmer
Roscoe Filburn challenged the constitutionality of
the statute on several grounds, including the Commerce Clause. He argued that
the AAA exceeded the power of Congress under the Commerce Clause for at least
two reasons. First, conceding that Congress could regulate intrastate or local
activities that had a substantial effect on interstate commerce, Filburn argued that the few excess bushels of wheat he
harvested had a “trivial,” not substantial effect, on interstate commerce and
was thus beyond the reach of federal regulatory authority. Second, he argued
that wheat grown for his own use was not part of the commercial “market” that
was the focus of the Commerce Clause.
He
lost on both counts. Justice Robert Jackson, who was later Allied prosecutor at
the Nuremburg War Trials after World War II, reasoned that any activity,
commercial or not, that had a substantial effect on interstate commerce when
taken in the aggregate with other like activity was within the scope of
the federal commerce power. “But 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[.]” “That appellee's own contribution to the
demand for wheat may be trivial by itself is not enough to remove him from the
scope of federal regulation where, as here, his contribution, taken together
with that of many others similarly situated, is far from trivial.” Thus, Wickard stands
for the proposition that government regulation may reach any local or
intrastate activities when, taken in the aggregate, they have a substantial
effect on interstate commerce.
Like
its limitation upon Congress’s authority under the enforcement clauses of
constitutional amendments in City of
Boerne v. Flores, the Rehnquist Court also attempted to place limits on the
Congress’s commerce power for the first time since the 1930s. In Lopez, the federal law at issue was a
criminal statute that made it a crime to possess a firearm within 1000 feet of
a school. High school senior Alfonzo Lopez was charged with violating a state
criminal law when he took a concealed pistol with him to school at a San
Antonio high school. The next day, the state charges were dropped and he was
charged instead with violating the federal
“Gun-Free School Zones Act of 1990,” which was passed by Congress pursuant to
its authority under the Commerce Clause. Lopez argued that the statute exceeded
the authority of Congress under the Commerce Clause because carrying a weapon
has nothing to do with interstate commerce, much less a substantial effect on
it.
The
Court agreed. Citing Wickard,
the Chief Justice Rehnquist said, “But 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.” Here, however, there was no apparent relation
between gun-carrying and interstate commerce, and Congress had made no such
findings. Justice Breyer, in dissent, focused on the government’s arguments
that crime in general and gun crime in particular has a substantial effect on
interstate commerce, but the majority rejected the argument as too tenuous to
support the exercise of Commerce Clause regulatory authority in this instance.
Note that state charges against Lopez were still possible because they are not
based on the federal commerce power but on the state police power.
The
government has made a similar aggregate economic argument in several other
recent cases. In United States v.
Morrison the argument was made that sexual assaults, in the aggregate, have
a substantial effect on interstate commerce, particularly when such assaults
deter students from continuing their education.
Christy Brzonkala, a freshman at Virginia
Tech, alleged that she was assaulted and raped by Virginia Tech football
players. After the school disciplinary proceedings resulted in the suspension
of only one of the students for only one semester, she sued the players and
others, not in state court under Virginia’s common law or statutes, but in
federal court under a federal civil liability statute, The “Violence Against Women Act” of 1994. The statute allowed victims of
gender-based crimes to sue in federal court for damages and was an exercise of
Congress’s Commerce Clause power. Note again that state law—this time, civil
tort remedies—was also available, but she bypassed those actions and went
straight to federal court. The defendants were not charged with crimes as of
the time that Brzonkala filed suit.
The
Court struck down the federal statute as exceeding the Commerce Clause
regulatory power. Again, Chief Justice Rehnquist rejected the reasoning that
gender-based or gender-motivated crime, individually or in the aggregate, can
have a substantial effect on interstate commerce. Accepting this reasoning, he
said, potentially brings all activities within the scope of Commerce Clause
regulation. The government, intervening to defend the constitutionality of the
statute, argued extensively that gender-based crime affects commerce, but as in
the Lopez case, the causal relation
between these actions and interstate commerce was too tenuous for the narrow
5-to-4 majority.
Judicial
Politics
The
division on the Court between justices who accept the recent limits on the
Commerce Clause and those who, though acknowledging limits, have yet to find
them applicable to a case before them, is one of the lines dividing
“conservative” from “liberal” jurists: judicial conservatives in the twentieth
and twenty-first centuries thus take a line on federal government power that is
reminiscent of the Jeffersonian, limited government position. Judicial liberals
tend to accept broad national legislative power, similar to the attitude of
Chief Justice Marshall and the nationalists on the early Court. (There are also
other significant disagreements between the two so-called “blocs” of justices.)
Sometimes,
however, these tendencies are broken is a particular case. The California
medical marijuana case was one such instance. California passed a law that
legalized the private growing and use of marijuana for medical purposes. This
law was in conflict with federal drug and controlled substances statutes and
regulations. In Gonzalez v. Raich (2005), California’s Compassionate Use Act, which
permitted the cultivation, possession, and use of marijuana for medical purposes came into conflict with the federal Controlled
Substances Act, which prohibited the manufacture, possession, and use of
marijuana. The by-now familiar argument was made by plaintiffs Raich and Monson that in regulating the private, local
cultivation of small amounts of marijuana, the federal act exceeded the scope
of Congress’s power to regulate commerce. The Ninth Circuit Court of Appeals
ruled in favor of Raich on Lopez grounds, holding that the federal Controlled Substances Act
cannot regulate the use and cultivation of small amounts of marijuana protected
by California law.
The
Supreme Court reversed, by a vote of 6 to 3. In Gonzales, two justices who had been in the majority in the Lopez and Morrison cases, Justices Kennedy and Scalia, joined the judicial
liberals in upholding the federal statute and invalidating the provisions. The
majority relied principally on the reasoning of Wickard v. Filburn, which it found “of
particular relevance.” Like the Agricultural Adjustment Act in Wickard, which regulated the nation’s agricultural industry in the United
States, the Controlled Substances Act (“CSA”) and the larger Comprehensive Drug
Abuse Prevention and Control Act, of which the CSA is a part, attempt to
regulate a nation-wide industry, the drug and pharmaceutical industry.
Justice Kennedy joined the majority opinion. Justice Scalia concurred in the
judgment (agreed with the Court’s judgment but disagreed with the majority’s
rationale for it), emphasizing that the regulation of the nation’s
pharmaceutical industry is a legitimate exercise of the commerce power and that
the regulation of manufacture and possession of marijuana is a necessary and
appropriate part of that regulatory scheme.
Finally,
the Patient Protection and Affordable Care Act, commonly known as “Obamacare,”
includes a provision called the individual mandate, which requires individuals
to purchase medical insurance or be subject to a penalty for not doing so. This
provision was challenged on several grounds, one of which was that it exceeded
the scope of the Commerce Clause authority by not only regulating activities that had a substantial effect on interstate
commerce but by requiring individuals
to engage in such activities. The government unsurprisingly relied upon the
reasoning of Gonzales and Wickard for
justifying this power over individuals, but a majority of the Court rejected
this argument. In Chief Justice Roberts’s words:
The individual
mandate, however, does not regulate existing commercial activity. It instead
compels individuals to become active in commerce by purchasing a product, on
the ground that their failure to do so affects interstate commerce. Construing
the Commerce Clause to permit Congress to regulate individuals precisely
because they are doing nothing would open a new and potentially vast domain to
congressional authority.
Dissenters
Scalia, Kennedy, Thomas, and Alito echo this thought:
It is true that,
at the end of the day, it is inevitable that each American will affect commerce
and become a part of it, even if not by choice. But if every person comes
within the Commerce Clause power of Congress to regulate by the simple reason
that he will one day engage in commerce, the idea of a limited Government power
is at an end.
To
broaden the already expansive scope of Commerce Clause regulation to include
this kind of regulation was not acceptable to a majority, although four
justices—Ginsburg, Breyer, Sotomayor, and Kagan—dissented.
The
National Federation of Independent
Business Case
The
NFIB case is an interesting exercise
in Supreme Court “nose-counting.” There is reason to believe that the original
lineup of justices on the issues of the case was different from the final. The
merits of the case included constitutional challenges to two of the provisions
of the Act: (1) the individual mandate and (2) the requirement that states
expand their Medicaid programs’ coverage or suffer the withholding of federal funds.
All justices except Ginsburg and Sotomayor agreed that the provision that
threatened the withholding of federal Medicaid funds from states that refused
to expand their programs was unconstitutional. But the opinions on the
individual mandate were not so simple.
The
summary of the justices’ positions that precedes Chief Justice Roberts’s
opinion is complex:
ROBERTS, C. J.,
announced the judgment of the Court and delivered the opinion of the Court with
respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and
KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and
KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and
III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment
in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which
BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY,
THOMAS, and ALITO, JJ., filed a dissenting opinion.
THOMAS, J., filed a dissenting opinion.
The
Chief Justice’s opinion that the individual mandate was not a valid exercise of
the federal commerce power (Part III-A of his opinion) was mirrored in the
dissent of Scalia, Kennedy, Thomas, and Alito, but these justices did not join in Part III-A of Roberts’s opinion
nor did they indicate that they concurred
in this part of Roberts’s opinion. Such an indication of concurrence is the
usual practice. Nor did these four justices indicate that they concurred in the
judgment or the opinion that the withholding of Medicaid funds was
unconstitutional (Part IV), yet they argued that the withholding provision was
indeed unconstitutional. Like their opinion on the individual mandate, their
opinion that the withholding of Medicaid funds was unconstitutional was simply
spelled out in their dissent. The Court’s judgment that the Medicaid
withholding provision was unconstitutional depends upon their “dissenting”
opinion for its majority! It was also unusual that the dissent was “signed”
by—attributed equally to—all four of them instead of the more common practice
of one justice authoring a dissent and being “joined” by others, exemplified by
Ginsburg’s opinion.
On
the other hand, Justice Ginsburg, joined by Breyer, Sotomayor, and Kagan,
expressly dissented from Robert’s Commerce Clause reasoning on the individual
mandate (Part III-A). The four did not indicate agreement or disagreement with
Roberts’s argument that the individual mandate might be considered an exercise
of the federal taxing power (Part III-B), but they did concur in his holding
that the individual mandate was constitutional as an exercise of the taxing
power (Part III-C). (Ginsburg and Sotomayor would have upheld the Medicaid
withholding provision; Breyer and Kagan concurred with Roberts’s holding that
it was not constitutional. In short, Ginsburg and Sotomayor would have upheld both
challenged sections of the Act; Breyer and Kagan only joined Ginsburg’s opinion
on the individual mandate.)
The
summary of the justices’ positions that precedes Roberts’s opinion, together
with the separate opinions by Breyer and Ginsburg, indicates that apparently
none of the justices joined or concurred in Roberts’s opinion (Part III-A) that
the individual mandate exceeded Congress’s authority under the Commerce Clause.
But the opinion of Scalia, Kennedy, Thomas, and Alito
regarding the individual mandate was quite similar to Roberts’s and concludes,
with Roberts, that the mandate exceeds Congress’s Commerce Clause authority.
Whether the Commerce Clause reasoning of Roberts and the four
dissenters—Scalia, Kennedy, Thomas, and Alito—is similar enough to establish it
as precedent is questionable because the dissenters did not explicitly concur
in Roberts’s reasoning or join that part of his opinion. One might have
expected the dissenters’ opinion, like Ginsburg’s opinion, to be labeled
“concurring in part and dissenting in part,” or some such language, but it was
simply labeled a “dissenting” opinion. If we disregard the “concurring” and
“dissenting” labels, the opinions in this case are reminiscent of the seriatim opinions of the early Court.
Since
Breyer, Sotomayor, and Kagan joined the part of Ginsburg’s opinion concurring
in Chief Justice Roberts’s holding that the individual mandate was a constitutional
exercise of the taxing power, this taxing power rationale may be used as
precedent in future cases because a majority of the justices expressly agreed
that the individual mandate was constitutional as a tax.
A
different majority held that the Medicaid withholding provision was invalid:
Chief Justice Roberts; Justices Breyer and Kagan, who concurred in that part of
Roberts’s opinion; and Scalia, Kennedy, Thomas, and Alito, who indicated in
their dissent that they thought the provision was unconstitutional. Whether
there is a common rationale for the invalidation that can serve as precedent
depends on the similarity of Roberts’s opinion and the four dissenters’
opinion.
Some
have speculated that the Chief Justice was originally of the same mind as the
four dissenters—Scalia, Kennedy, Thomas, and Alito—but that for some reason he
decided to go his own way in reasoning that the individual mandate was a valid
exercise of federal taxing power. The odd thing is that the aforementioned
dissenters did not follow the usual practice of indicating that they “concurred
in part and dissented in part” with Roberts’s opinion. As
Alice would say, “Curiouser and curiouser!”
Perhaps one of the justices, after retirement (or, more likely, one of the
clerks after moving on to richer pastures), will shed some light on what
transpired at 1 First Street, N.E., when the Court was deciding NFIB v. Sibelius.
©William S Miller