Obamacare in Wonderland -- Guest Post by Nick Bravin

Having said just about everything I believe I have to say about the constitutionality of the Affordable Care Act, I am giving over today's post to Nick Bravin, a DC-based lawyer, writer, con law teacher, Olympic fencer, former law clerk to Justice Ginsburg, and once upon a time, sort of my student.  Here's Nick:


Pulsing through the legal and political opposition to the Patient Protection and Affordable Care Act of 2010 is the urgency and paranoia of Henny Penny.  If the law is allowed to stand the sky will fall, Florida District Court Judge Roger Vinson told us in his opinion striking down the Act in January – or worse, the federal government will be able to invade the smallest crevices of our lives, even make us eat broccoli.  On Friday, a divided panel of the Eleventh Circuit affirmed Judge Vinson’s ruling invalidating the individual mandate, if not all of his reasoning.

It’s not Chicken Little, but another fable that comes to mind when you examine the past 200 years of jurisprudence under the Commerce Clause, the constitutional provision on which Judge Vinson and the Eleventh Circuit relied in invalidating the law.

“When I use a word,” Humpty Dumpty says to Alice, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

Over the years the masters of the seven relevant words in the Commerce Clause – in our world, on this side of the looking-glass, called the majority of the Supreme Court – have fluctuated wildly in their interpretation, often depending quite reliably on their view of the role of the federal government. 

The seven words from Article I, Section 8, clause 3 of the Constitution give Congress the power “[t]o regulate Commerce . . . among the several States.”

The first Supreme Court opinion to address Congress’s power under the Commerce Clause was penned in 1822 by Chief Justice John Marshall, a committed federalist.  After brushing aside the argument that Congress’s constitutional powers should be “construed strictly,” Marshall explained that “Commerce” is more than just “buying and selling, or the interchange of commodities.” It is “intercourse,” he concluded, and thus comprehended the power of the federal government to extend to “navigation” of waterways.  “Commerce” equals “intercourse” equals “navigation.”  The words meant just what Chief Justice Marshal chose them to mean, neither more nor less.

It was more than 65 years before Marshall’s expansive interpretation of “commerce” was challenged.  In a series of opinions beginning in 1888, a conservative Supreme Court led by Melville Fuller and a group of pro-corporation ex-railroad lawyers, declared that “commerce” does not include activities such as “manufacture,” “production,” and “mining.” “Manufacture is transformation – the fashioning of raw materials into a change of form for use,” the Fuller Court said in 1888, “The functions of commerce are different.”  Based on similar logic over the next several decades the court struck down federal laws prohibiting interstate transportation of goods produced with child labor or produced in violation of wage and hours restrictions.

The words, “regulate,” “Commerce,” “among,” continued to be parsed.  After Roosevelt’s threatened court-packing plan and the so-called “switch in time that saved nine,” the interpretations of the words changed.  Federal wage and hours laws were now within Congress’s Commerce Clause powers.  The only thing that stayed the same was that the words always meant just what a majority of justices of the Supreme Court said they meant.  Even if they had meant the opposite only a few years earlier.

The apogee of the commerce-is-whatever-Congress-wants-to-regulate era came in the 1942 case Wickard v. Filburn, a unanimous opinion written by the always-eloquent Justice Robert Jackson.  In 1941, Filburn had produced 239 bushels of wheat over the limit set under amendments to the Agricultural Adjustment Act of 1938 – presumably because he did not intend to sell the wheat, but instead to use it on his small farm.  He was fined 49 cents per bushel for his overage, and he sued, arguing that the federal law exceeded Congress’s power under the Commerce Clause. 

The court had no trouble concluding that the federal legislation – which regulated production of wheat that was neither for “Commerce” nor moving “among the several States” – was constitutional. The national wheat market, the court recognized, was complicated and interconnected, and Congress had tremendous leeway to regulate it.  Even though Filburn’s effect on the national market was small, combined with lots of other small farmers exceeding their quotas, the effect could be substantial.  Moving past facile labels and formalistic thinking, Justice Jackson explained Commerce Clause analyses must be guided by the practical:  “[E]ven if [Filburn’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 . . . .”   All nine members of the court chose a meaning of “Commerce” that included eating your own wheat or feeding it to your animals, and a meaning of “among the several States” that included all on one farm within one state.

The message was clear.  For the next 50-plus years, no federal law was struck down on Commerce Clause grounds.  Then, in 1995, a narrow majority in an ideologically-divided Supreme Court struck down the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a gun within 1000 feet of a school.  The court, in United States v. Lopez, held that possession of a gun was not itself economic activity and Congress had failed to make adequate findings to support its contention that guns around schools discourage attendance and disrupt learning, which in turn hurts the economy.

The preceding 200 years of Commerce Clause cases had muddied up the meaning of the seven words so badly the new court majority summed up where we stood and identified three areas to which Congress’s power extends:  (1) “the use of channels of interstate commerce,” e.g. roads, waterways, railroads; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce,” e.g., people and things traveling interstate or the trucks, trains, planes in which they are moving; and, (3) “those activities having a substantial relation to interstate commerce, … i.e., those activities that substantially affect interstate commerce.”

Five years later, in 2000, the court struck down the Violence Against Women’s Act of 1994, bringing certain gender-motivated violence into the federal ambit, despite voluminous congressional findings on the serious consequences such violence had on interstate commerce.  The court, again divided 5-4 along ideological lines, focused on the “noneconomic” nature of the prohibited activity, and concluded it did not fit into the third category; violence against women did not “substantially affect interstate commerce.”

For many, that case, United States v. Morrison, signaled the end of the expansive Commerce Clause.  The counter-revolution, or the counter-counter-revolution more appropriately, was complete. 

Then, in 2005, came Gonzales v. Raich.  The two women who brought the case each had serious illnesses and used marijuana in accordance with California’s 1996 Compassionate Use Act.  But that didn’t stop the feds from destroying the stash of one of the women “after a 3-hour standoff.”  The women challenged the federal drug law, the Controlled Substances Act of 1970, on the ground that it violated the Commerce Clause when applied to the wholly in-state use of marijuana that was homegrown, thus never in commerce.  While the nine justices considering the case were the same ones who had decided Lopez and Morrison, the circumstances of the case led to a different result.  Two of the justices from the conservative majority in those earlier cases – Antonin Scalia and Anthony Kennedy – joined with the four liberals to uphold the validity of the federal drug laws.

If the case makes you think of Wickard, the wheat quota case, you’re reasoning like a Supreme Court justice.  Just as in that 1942 case, the court concluded Congress had the power to control entirely intrastate activities that were noncommercial.  That is what the words of the Commerce Clause meant, the court majority declared, nothing more, nothing less.

As this brief history shows, the Commerce Clause, perhaps more than any other provision of the Constitution, has always attracted tortured readings – from both sides of the Court.  It has also frequently been the axis on which the Court has see-sawed, or flip-flopped, or Humpty-Dumpty’d, if you prefer.  “Manufacturing” and “production” were not “Commerce,” and then they were.  Federal child labor laws and wage and hours restrictions were held to violate the Commerce Clause, and then they weren’t.  Congress’s Commerce Clause powers were sacrosanct, and then they weren’t – except if they were going after pot.

The words of the Commerce Clause, and the cases putting a gloss on it, have always meant whatever the relevant judge has chosen for their meaning.

Judge Vinson’s January ruling, largely upheld on appeal Friday, was no different.  Because the health care law undoubtedly concerns “economic” matters it couldn’t be attacked along the lines of the Gun-Free School Zones Act or the Violence Against Women Act.  Instead, Judge Vinson’s decision turned on the meaning he ascribed to the word “activity,” as in Congress’s power to regulate “those activities that substantially affect interstate commerce.”  The essence of his very long January order is that the decision not to buy health insurance is not “activity” – not that the word “activity” appears anywhere in the Commerce Clause – and regulating inactivity, i.e., requiring an unwilling citizen to purchase private health insurance, is beyond Congress’s power.  The Eleventh Circuit majority eschewed a formalistic activity/non-activity distinction and focused instead on what it characterized as the unprecedented congressional mandate for private individuals to enter into commerce, as opposed to more traditional congressional acts prohibiting conduct or regulating pre-existing commercial conduct. 

The two appellate decisions issued to date have dispelled the facile and cynical predictions about the Act’s judicial fate.  In the Sixth Circuit, a Republican appointee joined a Democratic one in upholding the individual mandate, while another Republican appointee dissented.  In the Eleventh Circuit, a Democratic appointee joined with a Republican one to invalidate the individual mandate while another Democratic appointee dissented.  While the best predictor of a judge’s vote on a controversial political issue may often be the party of the president who appointed her, judges and their legal philosophies are too complicated and nuanced to depend on any single factor.  Besides potentially restoring some notion of the integrity and independence of the federal judiciary, the conflicting outcomes in the Sixth and the Eleventh circuits have assured the Supreme Court will take up the individual mandate issue this term (regardless of what happens in the pending Fourth Circuit appeals).

When it gets there, as usual, all eyes will be focused on Justice Kennedy – remember he voted against Congress’s power to enact laws prohibiting guns around schools and violence against women, but for Congress’s power to criminalize possession of homegrown, home-consumed pot that never crossed a state border.  As a justice who frequently capitalizes the word “Liberty” in his opinions (and defends “states’ rights”), one can expect Justice Kennedy to bristle at the federal command to buy a private insurance product (or pay a penalty for not).  If that’s true and the justices line up along traditional lines, that will leave the government and the Act’s defenders looking for refuge in an unlikely ally. While I don’t imagine many seriously think Justice Scalia would countenance a federal requirement to take any affirmative action, don’t forget he also switched sides in the Raich case and recognized broad federal power. 

And the words Justice Scalia wrote in a separate concurring opinion in that case represent the strongest argument in favor of the constitutionality of the health care law.  First, he emphasizes that the seemingly haphazard readings of the Commerce Clause must be understood in the light of the constitutional provision that grants Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” including the Commerce Clause.  Then, Scalia, always the close and precise interpreter of constitutional language, explains why he chose to read the interstate portion of the Commerce Clause to include noncommercial, intrastate activity: 

“Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants.

* * *

“Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market ‘could be undercut’ if those activities were excepted from its general scheme of regulation, [thus Congress had the power to regulate them.]”

Isn’t that just what Congress tried to do with the individual mandate – facilitate interstate commerce, the functioning of the nation’s medical insurance and health care industries, by eliminating the “potential obstruction” of free riders?  Couldn’t Congress just as reasonably conclude that its objective of creating a single market for health insurance “could be undercut” by allowing those free riders to be the pin prick that lets all the air out of the balloon?   Isn’t that reading much closer to the larger idea and the core meaning of “regulating Commerce . . . among the several States”?  It really comes down to the same question Alice asked:  “whether you can make words mean so many different things.”  The answer may well depend on which side of the looking-glass you’re on.