Is This Blog’s Proposed New Federal Voting Rights Act Constitutional?

A prior post proposed a new federal voting rights act that would (a) make every U.S. citizen (including children and felons) eligible to vote; (b) require every citizen to vote; (c) forbid any racial discrimination in voting; and (d) simplify voting laws and procedure. Left unadressed was the constitutionality of such a statute.

Relevant Constitutional Law

Such a constitutional analysis is suggested in a recent article by Jesse Wegman, an experienced lawyer and journalist and a member of the New York Times’ Editorial Board, and this post draws from his article.

We start with the U.S. Constitution’s Elections Clause (Article I, Section 4). It provides: ” The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

According to the U.S. Supreme Court in various cases, the words “Times, Places and Manner” in this Clause are “comprehensive words,” which “embrace authority to provide a comprehensive code for congressional elections.” The Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only as far as Congress declines to pre-empt state legislative choices.” Indeed, the congressional power under the Clause “is paramount and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no further, the regulations effected supersede those of the State which are inconsistent therewith.”

On the other hand, the Supreme Court has held in various cases, the Clause does not empower Congress to regulate who may vote in congressional elections. Instead, Article I, section 2(1) of the Constitution states, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (Emphasis added.) The same criteria for senatorial elections are set forth in the Seventeenth Amendment to the Constitution.

These constitutional provisions were the bases for the Supreme Court’s decision, 7 to 2, on June 17, 2013, in Arizona v. Inter Tribal Council of Arizona to invalidate an Arizona statute that required voter-registration officials to reject any application for registration that did not include documentary evidence of U.S. citizenship even though a Federal Form for such registration under the National Voter Registration Act that states are required to “accept and use” does not require such documentary evidence.

The opinion for the Court was written by Justice Antonin Scalia and was joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Anthony Kennedy joined the opinion in part and filed his own concurring opinion. [1]  It was from Justice Scalia’s opinion that the foregoing summary of prior Supreme Court precedents was drawn.[2]

Application of the Constitutional Law to the Proposed Federal Voting Rights Act

Clearly the proposed statute’s making every U.S. citizen, including children and felons, eligible to vote would be unconstitutional. It could be rescued on the federal level only by an amendment to the U.S. Constitution. Individual states, however, could enact such laws.

The same conclusion would probably also apply to the proposal that every U.S. citizen be required to vote.

However, the various suggestions in the prior post for simplifying voting laws and procedure should be constitutional as would the ban on racial discrimination in voting.

Furthermore, I join Mr. Wegman in concluding that the Elections Clause could be the constitutional basis for “[s]trong federal laws . . . [to] help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.” In addition, even though the Elections Clause “allows Congress to set rules only for federal elections, . . . those laws almost always guide state election practices.”


[1] Associate Justices Clarence Thomas and Samuel Alito filed dissenting opinions in Arizona v. Holder.

[2] Only eight days later, Justice Scalia was in the majority in Shelby County v. Holder that, 5 to 4, invalidated an important provision of the federal Voting Rights Act. This case has been discussed in a prior post while another post summarized the criticism of that decision by former Supreme Court Justice John Paul Stevens.

The U.S. Constitution’s Interstate Commerce Clause After the Supreme Court’s Decision on the Affordable Care Act

U.S. Supreme Court Justices, 2012

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.

All of these opinions are available online.

1. Chief Justice Roberts’ Opinion.

Chief Justice         John Roberts

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.

Associate Justice Anthony Kennedy

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.)

Associate Justice Clarence Thomas

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.

Associate Justice Ruth Bader Ginsburg

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.

Other Approaches to Interpreting the U.S. Constitution Regarding Economic Regulation

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

Associate 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.

Akhil Amar

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
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.

Jack Balkin

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.

Conclusion

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.