With God’s leading or nudging the U.S. and Cuba to reconciliation, the timing of the announcement of that historic change on December 17th was due to more prosaic factors from the U.S. perspective.
Pressures for an announcement as soon as possible were several. The health of U.S. citizen, Alan Gross, was reportedly declining in a Cuban prison, and President Obama and Secretary of State John Kerry legitimately believed that reconciliation would be destroyed if he died in that prison. As we now know, the U.S. and Cuba had been engaged in secret negotiations for 18 months, and delaying the announcement ran the risk of a leak of the existence of the negotiations that would upset, if not destroy, the reconciliation. Less immediate was the upcoming Summit of the Americas in April 2015 with the U.S. needing to have a position on host country Panama’s invitation to Cuba to attend the Summit.
In addition, U.S. domestic political considerations pointed towards a December announcement before the Republican-controlled 114th Congress opened in early January and as soon as possible (the next day) after the adjournment of the 113th so that there would be no resulting interference with the completion of the many items of unfinished business of the current Congress. December also is the traditional time for exercise of presidential clemency (pardons and commutation of sentences), the latter of which was used for the release of the remaining three of the Cuban Five on December 17th.
All of these considerations suggest why the President on December 16th (the day before the announcement about Cuba) quietly signed the $1.1 trillion appropriation bill even though it contained a repeal of an important provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act regulating financial institutions that Senator Elizabeth Warren passionately resisted. The President did not want a lack of funding to interfere with or torpedo the reconciliation.
Within a week of the announcement we learned that the U.S. GDP for the third quarter had increased 5.0%, the strongest quarterly performance in a decade, and the U.S. stock market reacted with a record close on December 23 with the Dow Jones Industrial Average at 18024.17, registering its 36th record close this year. Unemployment is below 6.0%. The FY 2014 deficit is below its 40-year average. The Affordable Care Act has reduced uninsured Americans by 25%, and overall health-care spending has slowed significantly. The U.S. Dollar is stronger against other world currencies. The federal government’s bailouts of banks and the auto industry that rescued the economy from a total collapse at the start of the Obama presidency were closed out with a net profit to the taxpayers of $15.4 billion. Low world oil prices help the American consumer and weaken regimes hostile to the U.S., especially Russia, Iran and Venezuela. An amazing economic performance! (Packer, A Pretty Good Year for Government, New Yorker (Dec. 23, 2014); Higgins, Oil’s Swift Fall Raises Fortunes of U.S. Abroad, N.Y. Times (Dec. 25, 2014).)
President Obama, using the “fourth quarter” analogy of his favorite sport of basketball, obviously has concluded that he would be engaged in a vigorous “fourth quarter” (the last two years of his eight years in office) to do as much as possible of what he believes to be in the national interest of our country. Indeed, at the first Cabinet meeting after the huge Republican victories in this year’s midterm election, Obama gave every Cabinet member a white card that said, “We are entering the fourth quarter, and really important things happen in the fourth quarter.” Timothy Egan, a New York Times’ columnist, says Obama has “been liberated by defeat” and “in finally learning how to use the tools of his office, Obama unbound is a president primed to make his mark.” He is “marching ahead of politicians fighting yesterday’s wars,” who are forced “to defend old-century policies, and rely on an aging base to do it.” Moreover, Obama now “has Pope Francis as a diplomatic co-conspirator,” leaving Republican opponents of Cuban reconciliation to try to lecture “the most popular man on the planet.” (Osnos, In the Land of the Possible, New Yorker (Dec. 22 & 29, 2014); Eagan, Obama Unbound, N.Y. Times (Dec. 20, 2014).)
Finally the merits of reconciliation and these reflections on the timing of the announcement resurrect my personal support of the President. Given the Administration’s problems with the implementation of the Affordable Care Act and other administrative issues, I was beginning to think that Obama’s lack of prior administrative experience was a reason why he would not be the great President I expected him to be. Now, however, his achieving reconciliation with Cuba is a masterful demonstration of his intellectual, administrative and political skills.
On March 27th U.S. President Barack Obama had an audience with His Holiness Pope Francis at the Vatican followed by the President’s meeting with His Eminence Cardinal Pietro Parolin, the Vatican’s Secretary of State, and Archbishop Dominique Mamberti, its Secretary for Relations with States.
Afterwards the Vatican issued a press release that said, “During the cordial meetings, views were exchanged on some current international themes and it was hoped that, in areas of conflict, there would be respect for humanitarian and international law and a negotiated solution between the parties involved.”
The press release continued, “In the context of bilateral relations and cooperation between Church and State, there was a discussion on questions of particular relevance for the Church in that country, such as the exercise of the rights to religious freedom, life and conscientious objection, as well as the issue of immigration reform. Finally, the common commitment to the eradication of trafficking of human persons in the world was stated.”
Also afterwards at a joint news conference with Matteo Renzi, the prime minister of Italy, President Obama said the Pope and he “had a wide-ranging discussion. I would say that the largest bulk of the time was discussing two central concerns of his. One is the issues [sic] of the poor, the marginalized, those without opportunity, and growing inequality.”
“[T]hose of us as politicians have the task of trying to come up with policies to address issues, but His Holiness has the capacity to open people’s eyes and make sure they’re seeing that this is an issue. And he’s discussed in the past . . . the dangers of indifference or cynicism when it comes to our ability to reach out to those less fortunate or those locked out of opportunity.”
The President continued, “[W]e spent a lot of time talking about the challenges of conflict and how elusive peace is around the world. There was some specific focus on the Middle East where His Holiness has a deep interest in the Israeli-Palestinian issue, but also what’s happening in Syria, what’s happening in Lebanon, and the potential persecution of Christians. And I reaffirmed that it is central to U.S. foreign policy that we protect the interests of religious minorities around the world. But we also touched on regions like Latin America, where there’s been tremendous progress in many countries, but there’s been less progress in others.”
“I think the theme that stitched our conversation together was a belief that in politics and in life the quality of empathy, the ability to stand in somebody else’s shoes and to care for someone even if they don’t look like you or talk like you or share your philosophy — that that’s critical. It’s the lack of empathy that makes it very easy for us to plunge into wars. It’s the lack of empathy that allows us to ignore the homeless on the streets. And obviously central to my Christian faith is a belief in treating others as I’d have them treat me. And . . . [what has] created so much love and excitement for His Holiness has been that he seems to live this, and shows that joy continuously.”
“In terms of domestic issues, the two issues that we touched on — other than the fact that I invited and urged him to come to the United States, telling him that people would be overjoyed to see him — was immigration reform. And as someone who came from Latin America, I think he is very mindful of the plight of so many immigrants who are wonderful people, working hard, making contribution, many of their children are U.S. citizens, and yet they still live in the shadows, in many cases have been deported and are separated from families. I described to him how I felt that there was still an opportunity for us to make this right and get a law passed.”
The President added that the Pope “did not touch in detail on the Affordable Care Act. In my meeting with the Secretary of State, Cardinal Parolin, we discussed briefly the issue of making sure that conscience and religious freedom was observed in the context of applying the law. And I explained to him that most religious organizations are entirely exempt. Religiously affiliated hospitals or universities or NGOs simply have to attest that they have a religious objection, in which case they are not required to provide contraception although that employees of theirs who choose are able to obtain it through the insurance company.”
The President said, “I pledged to continue to dialogue with the U.S. Conference of Bishops to make sure that we can strike the right balance, making sure that not only everybody has health care but families, and women in particular, are able to enjoy the kind of health care coverage that the AC offers, but that religious freedom is still observed.”
In addition, the President said we “actually didn’t talk a whole lot about social schisms in my conversations with His Holiness. In fact, that really was not a topic of conversation. I think His Holiness and the Vatican have been clear about their position on a range of issues, some of them I differ with, most I heartily agree with. And I don’t think that His Holiness envisions entering into a partnership or a coalition with any political figure on any issue. His job is a little more elevated. We’re down on the ground dealing with the often profane, and he’s dealing with higher powers.”
“I do think that there is a potential convergence between what policymakers need to be thinking about and what he’s talking about. I think he is shining a spotlight on an area that’s going to be of increasing concern, and that is reduced opportunities for more and more people, particularly young people — who, by the way, have more and more access to seeing what’s out there and what’s possible because they have access to the Internet or they have access to other media, and they see the inequality and they see themselves being locked out in ways that weren’t true before. And that’s true internationally, not just within countries.”
Moreover, according to the President, for the Pope “to say that we need to think about this, we need to focus on this, we need to come up with policies that provide a good education for every child and good nutrition for every child, and decent shelter and opportunity and jobs . . . reminds us of what our moral and ethical obligations are. It happens also to be good economics and good national security policy. Countries are more stable, they’re going to grow faster when everybody has a chance, not just when a few have a chance.”
The President concluded his press conference comments on the audience by saying the Pope is “hopefully, creating an environment in which those of us who care about this are able to talk about it more effectively. And we are in many ways following not just his lead but the teachings of Jesus Christ and other religions that care deeply about the least of these.”
The President also separately stated the following after the audience:
“I think the theme that stitched our conversation together was a belief in politics and in life, the quality of empathy, the ability to stand in somebody else’s shoes and to care for someone even if they don’t look like you or talk liked you or share your philosophy—that that’s critical. It’s the lack of empathy that makes it very easy for us to plunge into wars. It’s the lack of empathy that allows us to ignore the homeless on the streets. And obviously central to my Christian faith is a belief in treating others as I’d have them treat me. And what’s I think created so much love and excitement for His Holiness has been that he seems to live this, and shows that joy continuously.”
As has been widely reported, the U.S. Supreme Court on June 28, 2012, decided, 5-4, that the Affordable Care Act (ACA) was constitutional under Congress’ constitutional power in Article I, Section 8(1) to “lay and collect taxes.” The Court’s Chief Justice and four of the Court’s Associate Justices also said in separate opinions that this statute was not constitutional under Congress’ constitutional power in Article I, Section 8(3) to “regulate commerce . . . among the several States.” The other four Associate Justices came to the opposite conclusion that the statute was constitutional under this provision.
This post will review what was said about the interstate commerce clause in the four opinions in the case and then analyze the status of that constitutional provision after this decision.
The Supreme Court’s Opinions on the Interstate Commerce Power
Chief Justice John Roberts’ opinion said that the Affordable Care Act was not constitutional under the interstate commerce clause. The same conclusion was reached in the joint dissenting opinion of Associate Justices Kennedy, Scalia, Thomas and Alito, and Associate Justice Thomas added a separate dissent to express an additional reason why he thinks the statute was invalid under this clause.
The opposite result was reached in the opinion by Associate Justice Ginsburg that was joined by Associate Justices Breyer, Sotomayor and Kagan.
First, Roberts gave a fair summary of the existing law on the Constitution’s interstate commerce provision. He said, “Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’ The power over activities that substantially affect interstate commerce can be expansive. That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.” For this summary, Roberts cited Wickard v. Filburn, 317 U. S. 111 (1942),which previously had been criticized by Justice Scalia, and Perez v. United States, 402 U. S. 146 (1971). (Roberts Slip Op. at 4-5.)
Roberts emphasized this concession when he said, “[I]t is now well established [by the Supreme Court’s prior cases] that Congress has broad authority under the Clause. We have recognized, for example, that ‘[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,’ but extends to activities that ‘have a substantial effect on interstate commerce.'” Moreover, he said, “Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” (Id. at 17-18.)For this last point he again cited the Wickard case. (Id.)
Nevertheless, Roberts continued, “As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.'” (Id. at 19.) The Affordable Care Act, however, according to Roberts, would require people to do something, i.e., to buy health insurance. Such a requirement, said Roberts, distinguished all of the prior Supreme Court precedents and, therefore, invalidated the statute. (Id. at 18-24.)
2. Associate Justices Kennedy, Scalia, Thomas and Alito’s Dissenting Opinion.
Although the joint dissenting opinion did not specifically endorse Roberts’ interpretation and conclusion, it implicitly did so. It did not attempt to overrule any of the Supreme Court’s precedents on the interstate commerce clause. Instead, it said the Wikard case, which Scalia previously had criticized, “held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated” and “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. ” (Joint Dissent Slip. Op. at 2-3.) But Wickard and other precedents, according to the dissenters, “involved commercial activity.” The ACA, on the other hand, attempted to regulate economic inactivity, i.e., the failure to buy health insurance, and, therefore, was unconstitutional under the interstate commerce clause. (Id. at 2-12.)
Justice Thomas was a co-author of this joint dissent and, therefore, agreed with all of its contents. His separate dissenting opinion was issued to reiterate his previously expressed view that the Court’s “‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” (Thomas Slip Op.)
3. Associate Justice Ginsburg’s Opinion.
Justice Ginsburg started with her summary of the Supreme Court’s precedents on the interstate commerce clause. She said, “Consistent with the Framers’ intent, we [Supreme Court Justices] have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon ‘practical’ considerations, including ‘actual experience.'” The Court has recognized that Congress has the “power to regulate economic activities ‘that substantially affect interstate commerce'” and regulate “local activities that, viewed in the aggregate, have a substantial impact on interstate commerce.” (Ginsburg Slip Op. at 14-15.)
She added from the Court’s precedents regarding the impact of the Constitution’s Fifth Amendment’s “due process” and implied equal protection clause that the Court repeatedly had said that it owed “a large measure of respect to Congress when it frames and enacts economic and social legislation” and that when “appraising such legislation, we ask only (1) whether Congress had a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.'” In addition, Ginsburg stated, “In answering these questions, we presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.” (Id. at 15-16.)
Ginsburg then criticized Roberts’ supposed distinction between the Court’s precedents in this area and the Affordable Care Act. That distinction, she said, had no support in those precedents, and his minor premise–the Affordable Care Act required some people to buy a product (health care) they did not want– was erroneous. (Id. at 18-31.)
The Interstate Commerce Power After the Supreme Court’s Decision
Before the Supreme Court issued its decision in this case, I was concerned that the shrill cries of columnist George Will and two judges on the Court of Appeals for the District of Columbia Circuit that called for the Supreme Court to overrule 75 years of Supreme Court precedents on the scope of the interstate commerce clause would resonate with the five so-called conservative Justices of the Supreme Court. My worries were exacerbated by the initial reports that those five Justices had concluded that the Affordable Care Act did not satisfy their view of what that clause allowed.
When I had read the Court’s opinions, however, I discovered that eight of the nine Justice had not overruled any of those Supreme Court precedents and indeed essentially had endorsed them. Only Justice Thomas called for overruling one subset of those precedents, i.e., those allowing Congress to adopt laws under the interstate commerce clause if there were substantial effects on that commerce from local activities.
Therefore, all of those cases are still good law on the expansive nature of the federal power over such commerce. As an advocate for strong federal powers for the U.S. in the 21st century, I am pleased with this result.
As noted above, five of the current nine Justices believe that all the other Supreme Court precedents over at least the last 75 years can legitimately be distinguished from this case over the validity of the Affordable Care Act on the ground that all of the precedents involved regulation of economic activity whereas this current case involved attempted regulation of economic inactivity. Is this a legitimate distinction?
Justice Ginsburg and three of her colleagues did not think so as previously discussed. I leave it to constitutional scholars to analyze the validity of this purported distinction.
There is also a serious question as to whether Roberts’ opinion on the interstate commerce clause (when coupled with the similar discussion in the joint dissent) together constitute a binding decision of the Court under the doctrine of stare decisis.
First, there is no official “Opinion of the Court” on the interstate commerce issue that could be considered as the basis for stare decisis. Roberts’ opinion on this issue is his alone. The similar opinion of the other four Justices (Kennedy, Scalia, Thomas and Alito) is a dissenting opinion that does not express concurrence in Roberts’ opinion on the issue.
This careful reading of the opinions, however, may be overcome by section III-C of the Roberts’ opinion on the taxing power issue that states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” This section of the Roberts’ opinion is concurred in by four other Justices (Ginsburg, Breyer, Sotomayor and Kagan), but they disagreed with this interpretation of the commerce clause. (Roberts Slip Op. at 41-42; Ginsburg Slip Op. at 2-36.) And Justice Thomas in his own dissent said, “The joint dissent and Chief Justice Roberts correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.” Perhaps these oddities are merely evidences of plain sloppiness in finishing the opinions in this case.
Second and more important, the opinions of Roberts and the four dissenters on the interstate commerce issue might be regarded as dicta and, therefore, not binding on the Court in subsequent cases or on lower federal courts. Since the Affordable Care Act was held to be constitutional on a different ground (the power to tax), then all of the discussion about the interstate commerce clause was not necessary to the decision and, therefore, dicta.
Justice Ginsburg was alluding to this principle in her opinion when she said that Roberts’ conclusion that the statute was constitutional under the taxing power should have meant there was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” (Ginsburg Slip. Op. at 37 n.2.)
Roberts responded to this argument in his opinion: “It is only because the Commerce Clause does not authorize such a command [to buy health insurance] that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that . . . [the relevant statutory provision] can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” (Roberts Slip Op. at 44-45.)
All of this discussion might be regarded as hyper-technical because so long as the Court’s composition remains the same, a majority (five Justices) is clearly on record on the limitation on the commerce clause power expressed in their opinions.
There is also disagreement on the significance of the new limitation on the interstate commerce power announced by Roberts and the four dissenters. Justice Ginsburg’s opinion says that Roberts ‘ opinion on the issue exhibits “scant sense and is stunningly retrogressive” and a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” (Ginsburg Slip Op. at 2-3, 37.) This view was echoed by George Will and other commentators who said the reading of the commerce clause was an ultimate victory for libertarians and conservatives. However, one of those conservatives–John Yoo— said this reading of the clause “does not put any other federal law in jeopardy and is undermined by its ruling on the tax power” and in fact is “a constitutional road map for architects of the next great expansion of the welfare state.”
I am an agnostic on the question of the significance of the new limitation. I think Justice Ginsburg overstates the fear of horrible consequences because at least four of the Justices who articulated the new limitation also endorsed the 75 years of precedents expanding the scope of the interstate commerce power. Moreover, Chief Justice Roberts in his opinion in the Citizens United case articulated his concept of stare decisis that makes it unlikely that he would countenance such a large-scale overruling of precedents, in my opinion. A lot depends upon who wins the 2012 presidential election and who will be appointed to the Court over the next four years.
It is interesting and somewhat ironic that while the Supreme Court was struggling with legal arguments that would restrict the power of the U.S. federal government to respond to national economic problems, European countries were struggling with how to create a central power or authority to rescue the European economy and currency from imminent collapse.
A prior post discussed stare decisis in the context of recent suggestions that the U.S. Supreme Court should establish a new and different interpretation of the constitutional limits on federal and state regulation of economic activities. Another post summarized arguments why there should be no such changes and why the Affordable Care Act was constitutional.
Here we examine in greater detail the U.S. doctrine of stare decisisas it relates to the forthcoming Supreme Court decision on the Affordable Care Act.
The Doctrine of Stare Decisis
As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is . . . the bedrock principle of the rule of law, to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”
I would add that the doctrine also assists in providing equal treatment for those similarly situated. If, for example, John Doe is held liable to Susan Smith for doing something to her, then Richard Roe should be held liable for doing the same thing to Janet Jones. This is a very important part of the rule of law.
Indeed, Chief Justice Roberts in a concurring opinion in the infamous Citizens United v. Federal Election Commission case from 2010, said, “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function. Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Part of what law students learn in law school and what practicing lawyers do in their lawyerly work is how to identify and articulate the holdings of cases and how to make legitimate distinctions between cases. That is all part of the doctrine of stare decisis.
Exceptions to the Doctrine of Stare Decisis
As Chief Justice John Roberts, however, said in his concurring opinion in Citizens United, stare decisis is not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Yet the Supreme Court has “long recognized that departures from precedent are inappropriate in the absence of a ‘special justification.'”
The Court in considering a potential departure from stare decisis must first conclude that a prior decision or decisions were erroneous. Roberts added, “When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”
Quoting former Supreme court Associate Justice Robert H. Jackson (1941-1954), Roberts said that such a balancing requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Roberts went on, “in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal [of the rule of law] than to advance it, we must be more willing to depart from that precedent.”
One example of a justified overruling of a prior decision is when “the precedent under consideration itself departed from the Court’s [prior] jurisprudence.” Another example, said Roberts, is when ” adherence to a precedent actually impedes the stable and orderly adjudication of future cases. . . such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”
In the Citizens United concurring opinion, Roberts specifically cited three instances of the Supreme Court’s properly departing from stare decisis and overruling prior cases: (1) Brown v. Board of Education‘s overruling of Plessy v. Ferguson and holding school racial segregation unconstitutional; (2) Katz v. United States’ overruling of Olmstead v. United States and holding wiretapping of criminal suspects without a search warrant unconstitutional; and (3) the previously mentioned West Coast Hotel Co. v. Parrish‘s overruling of Adkins v. Children’s Hospital of D.C. and holding minimum wage laws to be constitutional.
Given the valid and important reasons behind the doctrine of stare decisis and the weighty burden that should be met by any court’s overruling prior precedents, even as expressed by Chief Justice Roberts, the Supreme Court, in my opinion, should adhere to the 75-year deep body of law interpreting the Constitutional limits on economic regulation and uphold the constitutionality of the Affordable Care Act.
This apparently was the view of the Obama Administration at the time of the adoption of the Act and at the start of the various lawsuits challenging that statute. As a New York Timesarticle today states, “Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.”
If a divided Supreme Court this week does change the interpretation of the constitutional limits on congressional power to regulate interstate commerce, it will indeed be radical.
In reaction to such a possibility, Jonathan Turley, Professor at George Washington University Law School, has suggested that the number of Supreme Court justices be increased from its current nine to 19. In his opinion, “Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.”
Turley points out that the number of justices is not set in our Constitution and that nine was happenstance. He also says many developed countries have larger top courts: Germany (16), Japan (15), United Kingdom (12) and Israel (15). France (124) and Spain (74) have significantly more judges on their top courts, but those courts have structural differences from ours. All of these courts, however, “eliminate the [U.S.] concentration-of-power problem.” Turley suggests 19 for the U.S. as the average size of our federal appellate courts.
Turley’s suggestion echoes my prior criticism of our Constitution as antiquated and “imbecilic” in other respects, including life tenure for federal judges.
A prior post examined the large body of existing U.S. Supreme Court cases interpreting the Constitution regarding economic regulation and sustaining the constitutionality of the Affordable Care Act. That post also examined the strong views of U.S. Supreme Court Associate Justice Antonin Scalia on interpreting the U.S. Constitution (and other legal texts) and the vituperative pleadings of George Will and two appellate court judges for changing the interpretation of the Constitution regarding economic regulation.
Those views, however, are not universally accepted. Now we look at the equally strong views regarding such interpretation from Supreme Court Associate Justice Stephen Breyer and a group of legal scholars known as “the New Textualists.” Those scholars also confirm the constitutionality of the Affordable Care Act now pending in the Supreme Court.
Justice Stephen Breyer
In his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. He argues that the constitutional authors sought to establish a democratic government involving the maximum liberty for its citizens. “Modern liberty” for Breyer is freedom from government coercion. In addition, Breyer asserts, there is “active liberty” or the freedom to participate in government.
Both kinds of liberty should be protected by the courts, according to Breyer, who believes the guiding theme in constitutional interpretation, whether in upholding statutes or enforcing rights, should be enabling democracy — “a form of government in which all citizens share the government’s authority, participating in the creation of public policy.”
Therefore, in his opinion, courts should behave modestly—if not deferentially—when striking down legislation. Courts should acknowledge that the greater number of people involved in legislatures makes them more likely to be circumspect than the considerably fewer people sitting as judges on any court. Unless the legislature has perpetrated an egregious violation of rights, such deference in and of itself promotes the Constitution’s democratic objective by allowing the process of representative government to play out. Finally, he believes, promoting active liberty simply produces better law.
Moreover, Breyer believes courts should use legislative history to determine the intent of constitution-makers and legislatures when the texts are ambiguous. In a book on that very subject and in other writings he has identified five primary situations in which judges should use legislative history: (1) to avoid an absurd result; (2) to correct drafting errors; (3) to identify specialized meanings; (4) to identify the purposes of the statute; and (5) to choose among reasonable interpretations of a politically controversial provision.
Justice Breyer also claims that using legislative history is preferable to relying more heavily on canons of interpretation or construction as advocated by Justice Scalia. First, for every canon there exists an equal and opposite canon of construction. The sources of many interpretive canons are old and obscure. Breyer questions what validity a canon created in the nineteenth century has on statutes in the twenty-first century. Breyer also questions the legitimacy of the Supreme Court’s adopting new canons of interpretation or construction. Finally, Justice Breyer doubts that using canons actually helps those who either write or are affected by legislation.
The “New Textualists”
A different perspective on interpreting the U.S. Constitution is provided by Jeffrey Rosen, Professor of Law at the George Washington University Law School and Legal Director of The New Republic magazine.In an article in that magazine entitled “Constitution Avenue–Liberals discover a theory to crush conservative jurisprudence,” Rosen summarizes some of the work of three of the so-called New Textualists: Professor Akhil Reed Amar of the Yale Law School; Professor Einer Elhauge of the Harvard Law School; and Professor Jack Belkin of the Yale Law School.
Amar in his book, America’s Constitution: A Biography, emphasizes the original public meaning of the constitutional text. But the text is more than the original Constitution; it includes all of the amendments too. He points out that the Constitution has been far more democratic than is conventionally understood. Even though the document was drafted by white landholders, a remarkably large number of citizens (by the standards of 1787) were allowed to vote up or down on it, and the document’s later amendments eventually extended the vote to virtually all Americans.
According to Amar, the Affordable Care Act is constitutional under the Constitution’s Interstate Commerce clause as that has been interpreted by the Supreme Court. He said:
“What Congress does has to be in the enumerated powers [granted by the Constitution].. One of those powers is the Interstate Commerce Clause. What are the limits on that power? It only applies to regulations that are interstate and commercial. So Congress has to be actually trying to address a commercial problem that spills over state lines. And that’s clearly true here.”
“At any given nanosecond, millions of Americans are out of state. Most of my students at Yale are out of state. Three days a week, I am out of my home state. And if I or my students or any of these Americans fall sick, we go to a local ER. That’s an interstate issue. Similarly, if we don’t cover preexisting conditions, we have a lock-in for labor mobility — many workers will be unable to take better jobs out-of-state and thereby contribute more to their families and to the economy. And that’s what the Interstate Commerce Clause was all about: Getting rid of the impediments to genuine interstate commerce, to the free movement of goods and labor.”
Einer Elhauge has addressed the constitutionality issue of the Affordable Care Act by pointing out that in the early years of our Republic, Congress passed several laws mandating that individuals and companies buy certain things and that most of the constitutional framers supported these measures and none objected on constitutional grounds. These measures were the following:
“In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington.”
“In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. . . . Four framers voted against this bill, but the others did not, and it was also signed by [President] Washington.”
In “1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. . . . [T]his Congress, with five framers serving in it, . . . enacted a federal law requiring the seamen to buy hospital insurance for themselves.”
Moreover, Elhauge has responded to a criticism of the relevance of these statutes to the constitutional argument.
Professor Belkin in his book, Living Originalism, concludes that the best versions of originalism and living constitutionalism are not in conflict, but are compatible. It shows why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And it explains how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.
Belkin concludes that the Affordable Health Care Act is constitutional under Article I, Section 8 of the Constitution permitting Congress to “lay and collect taxes.” The Act, he says, does not actually require all (or certain classes of) individuals to purchase health insurance. Instead, it is a tax that people would not have to pay if they purchased health insurance.
The Supreme Court now has only five days next week in which to announce its momentous decisions in the cases involving the Affordable Care Act and the Arizona immigration law.
I again invite comments supplementing, correcting or challenging the assertions in this post.