Our last post explained what every American needed to know
about the recent Supreme Court decision upholding the Affordable Care Act (ACA). In the hours after its issuance, the decision
was greeted with great enthusiasm (and some surprise) by pro-health-care
commentators. Many asked why someone
like Chief Justice John Roberts, who is well-known for his conservative views
and strict reading of the Constitution and who wrote for the majority, would
take such a liberal view of the law.
A close reading of the decision, however, reveals that it
supports an extremely conservative interpretation of the Constitution regarding
the power of Congress to enact legislation.
In fact, the ACA decision might be one of the most conservative decisions
in decades, setting a path towards the reversal of generations of laws used to
support desegregation, promote work place safety and environment protection,
effectuate gun control, criminalize child pornography, promote trade, and the
like. In this decision, Roberts drafts a
sweeping restriction on the “Commerce Clause” and its authority to empower
Congress to make laws.
The Commerce Clause is contained in Article I, § 8,
¶
3 of the Constitution, in the article that describes Congress’s powers. It provides that “Congress shall have the
power … [t]o regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.”
Our current Constitution is the United States’ second
attempt at an agreement to define the relationship between the states and the
federal government. The first attempt
was embodied in the Articles of Confederation, which were ratified in 1781 and
replaced by the Constitution in 1789. The
Articles of Confederation were a quick failure for many reasons, but importantly,
they did not contain a Commerce Clause. It
left the regulation of commerce to the states, which competed with each other
and were not generally invested in the collective success of the nation. This became one of the central issues discussed
by the drafters of the Constitution at the Constitutional Convention in 1787:
the federal government’s lack of authority to centrally regulate interstate
commerce needed to be addressed and prevented in the future.
Once written into the Constitution, the Commerce Clause
opened many doors to Congress, enabling it to write legislation that would
otherwise have been beyond its reach.
The clause was interpreted broadly almost from the very beginning, and
by the New Deal era of the 1930’s, Congress’s power under the clause was nearly
limitless. Just about every aspect of
American life had something to do
with interstate commerce, and legislation regulating the way we live and trade was
almost always upheld as a reasonable exercise of the commerce power.
For example, the Civil Rights Act of 1964, which forbids
racial segregation and discrimination in public accommodations, was challenged
by many as beyond Congress’s authority when it tended to regulate commerce that
took place entirely within one state, or when it was enforced against private
(as opposed to public) establishments.
In the famous case of Heart of
Atlanta Motel
v. United States, 379 U.S. 241 (1964), the U.S.
Supreme Court held that Congress had the power, under the Commerce Clause, to
force private businesses to comply with the Civil Rights Act. And in Katzenbach
v. McClung, 379 U.S. 294 (1964),
the Court held that the Commerce power gave Congress the power to forbid
discrimination and segregation in restaurants (even small, locally-owned
restaurants) because even a small restaurant, or the collection of small
restaurants across, had a substantial impact on interstate commerce.
Justice Roberts, however, has a far narrower view of the
role the Commerce Clause should play in American life. In the introductory paragraphs of his
majority opinion, he carefully reiterates his position that Congress possesses
only the powers explicitly given to it in the Constitution, and that those
powers are to be interpreted as narrowly as possible as they take away from the
powers of the people and the states. He
then goes on to characterize the ACA as a law that compels uninsured people to
buy insurance – in other words, a law that requires people who are not
currently engaged in interstate commerce to become so engaged. (Majority Opinion at 16-17.) Insofar as such a law requires citizens to
buy a product in which they are not interested, it is not authorized, according
to Justice Roberts, under the Commerce Clause.
Justice Ginsburg, in her dissent, takes strong issue with
Roberts’ characterization of the law and his analysis under the Commerce
Clause. Health insurance is absolutely a
matter of interstate commerce, according to Justice Ginsburg, and thus Congress
can mandate universal health
insurance. Justice Ginsberg argues that
if the individual states are left to deal with health insurance on their own,
they will adopt varying positions, and citizens will choose where to live based
on the benefits available to them in a given state. States providing comprehensive coverage will
see an influx of sick, uninsured nonresidents (as happened in 2009 in
Massachusetts, shortly after it adopted universal health care under
then-Governor Romney). (Ginsburg Opinion
at 7-8.) The orderly regulation of health insurance is exactly the type of
commerce Congress is allowed to regulate.
Justice Ginsburg also does not agree with Roberts’ assertion
that the ACA requires citizens to buy a product in which they are not otherwise
interested. The government cannot force
people to buy any particular food that is not a necessity of life. For example, a person can go through his
entire life without eating broccoli. On the other hand, everyone, at some point
in her life, is going to need and will
consume health care in one form or another.
Because of this distinction, Ginsberg points out, every American is already active in the health care market. The health insurance market crosses state
lines and requires federal regulation in the same way that hotels and
restaurants do. (Ginsberg Opinion at 19.)
What does the difference in opinion about the application of
the Commerce Clause mean? Justice
Roberts’ opinion, because it is the opinion of the majority, is now the law of
the land. In the future, Congressional
laws regulating commerce are going to be looked at with more scrutiny, and the
Commerce Clause is no longer going to operate as a “catch-all” authorization
for federal legislation. Where an actual
effect on interstate commerce is in question, or where a majority of the Court
does not believe the commerce-based rationale for a law, the law is likely to
be struck down and the economic decision, whatever it is, will be left to the
states.
The ACA decision is not just a health care decision or a tax
decision. It contains far-reaching
language that is likely to have a heavy impact, going forward, on the nature of
civil rights and other legislation that had previously been founded on the
Commerce Clause. All Americans,
regardless of their political leanings, should be paying close attention. A major shift in our thinking and our
jurisprudence has taken place this summer.
We will watch the legal horizon with great interest.
Jennifer B. Arlin, Esq.
Sam Braverman, Esq.
Jennifer B. Arlin, Esq.
Sam Braverman, Esq.
