PLANK JUNE 28, 2012
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The right’s legal attack on health care reform failed today. But did the right’s broader assault on federal power succeed? Earlier today, I suggested that it might have.
Although Chief Justice John Roberts joined his liberal colleagues in upholding the law, he joined his conservative colleagues in rejecting a key argument on the law’s behalf. In particular, he said that the mandate was not a legitimate way for the government to regulate interstate commerce.
The Court has historically interpreted the Commerce Clause very broadly. It’s the constitutional provision that underlies, among other things, the Court’s rejection of segregated public facilities. But Richard Primus, a professor of constitutional law at the University of Michigan, is skeptical that Roberts’ opinion will seriously limit the reach of that clause:
“People will say the discussion of the Commerce Clause is important, but its importance is symbolic rather than practical. This decision gave the Court a free shot to say that the commerce power is limited without having to strike anything down. Judges will get to say that the commerce power is limited and cite this decision. But no statute is likely to get struck down on this ground anytime in the foreseeable future. There aren’t any statutes that would fall to this analysis, and Congress is unlikely to pass any.
“The job of a Supreme Court justice is to say the commerce power is limited, just like it is the job of a Cardinal to say “I believe in one true Church, holy, Catholic, and apostolic.” It’s a statement of creed. The Chief Justice may well believe in that creed, and certainly lots of other people do. There is value in asserting that creed. But I don’t think it will actually decide a foreseeable case, and it didn’t today.
“The brilliance of the decision is that the Court affirmed the creed without doing damage.”
8 comments
I agree with Cohn: speculating about the impact on federal power under the commerce clause serves no useful purpose. Like I tell clients when they ask if someone can sue them: all it takes is a piece of paper with some words on it and payment of the filing fee. As Scarlet wisely intoned in a different context, I'll worry about that problem tomorrow.
- rayward
June 28, 2012 at 3:42pm
Thanks for this one. I can't see how the Commerce Clause was decimated by today's ruling. Congress may use its tax authority to induce people to act. There is no sweeping, unambiguous definition of "inactivity," is there?
- STTaylor
June 28, 2012 at 3:49pm
Sadly C.J. Roberts has cut off the socialist plot to mandate broccoli purchases before it has even begun!
- Pnaut
June 28, 2012 at 3:57pm
Even if the court went to far, hypothetically, when litigants start asserting crazed legal positions based on interpretations of an untenable holding, the Court backs away. I remember Rehnquists federal interference with "traditional state governmental function" as a limit on the commerce clause in setting minimum wages for policeman in National League of Cities v. Usery. The court then backed away from applying that doctrine in other cases.
- Nusholtz
June 28, 2012 at 4:04pm
too. Too far.
- Nusholtz
June 28, 2012 at 4:48pm
That's good news then if that's where the debate ends up.
- jet
June 28, 2012 at 5:50pm
A few thoughts. Apparently Roberts went out of his way to tailor his rejection of the commerce clause power so that it's referable only to this particular case. On the other hand, the taxing power is there even to force the eating of broccoli. Also the majority rejection of the commerce clause here is orbiter dicta, I.E., not the main point of the case, which is the taxation point. That should mean the commerce clause reasoning as precedent will be at a minimum attentuated compared to the commerce clause being the main point of the case. To reject the proposition that someone not doing something puts them "in the market" --inactivity-- may not be a harbinger of difficulties for socially progressive policies. Can anyone think of a possible example. For the moment I can't. And as Roberts said, I paraphrase from hearsay, the commerce clause point was a novel one, or as the lawyers say "of first impression." That also bodes well.
- basman
June 29, 2012 at 12:15am
In addition, Congress can now avoid even the slight possibility of the Supreme Court overturning any economic regulation, no matter how broad or intrusive, if it relies at least in part on the taxing power to enforce the law. Virtually any area of human endeavor likely to be subject to legislative regulation can now safely be enforced through a tax penalty. Of course Congress will be reluctant to pass anything that can be described as a "tax" in the next election cycle, but this is really the only practical limit on Congressional power.
- tomcasekry
June 29, 2012 at 8:35pm