The Supreme Court is currently considering what might be the most consequential decision since Brown v. Board of Education. The case will determine whether to void the central piece of legislation that the Obama Administration has passed: comprehensive healthcare reform (accomplishing something that presidents have been attempting without success for decades). The result of the case will significantly influence how historians view President Obama.
Of substantially more importance, however, is the fact that this case presents the Supreme Court with a question that goes to the very core of the Constitution. The Court has always struggled to determine how American federalism should work.
In this case, the Court will look to resolve that issue. The Court considers this case so significant that it granted the parties six hours to argue the case. In virtually all other cases, regardless of significance, the Court allows a total of 30 minutes.
Supreme Court arguments are not televised. However, the Court will publish a full transcript of the arguments. For anyone who has never read one of these transcripts, this is a perfect opportunity. Supreme Court oral arguments are genuine debates between brilliant individuals who care deeply about the meaning of the Constitution.
In a series of three posts, I will present a guide to understanding the arguments. Each post will focus on a previous Supreme Court case that the arguers will probably refer to with a fair amount of frequency.
Before getting into the cases, a brief description of the primary issue in the Obamacare case is in order. According to the Constitution, the federal government has limited powers. The Constitution includes of list of categories of laws that the federal government has control over. The Constitution goes on to state that the power of the federal government is limited to that list, and any laws that are not provided for in that list are unconstitutional.
Nowhere does the list indicate that the federal government has the power to force individuals to make purchases in the private market. However, Obamacare does just that. It forces individuals to purchase health insurance. So, the question arises, where did the federal government get the power to do that?
The Obama Administration argues that the power comes from the Commerce Clause, which states, “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
The three cases that are critical to the understanding of the Obamacare case all deal with the proper interpretation of the Commerce Clause.
The first of the three cases is United States v. Lopez, a 1995 case. Congress had passed a law making it a federal crime to possess a gun within 1,000 feet of a school. A person convicted of the crime appealed, arguing that Congress did not have the power to pass such a law. The government contended that Congress passed the law pursuant to its power to regulate interstate commerce. According to the government, the possession of guns in school zones can lead to violent crime, and violent crime affects the national economy because it is expensive to prevent and because it can deter people from traveling to places they view as unsafe.
In a 5-4 decision, the Court rejected the government’s argument. The Court provided a long history of the Commerce Clause. During the first few decades of the twentieth century, the Court had been stringent about the Commerce Clause, striking down numerous laws as unconstitutional. However, in 1937, the Court determined that it was too difficult to draw consistent lines when strictly interpreting the Commerce Clause. Shortly thereafter, the Court decided the Wickard case, which is an illustration of how much leeway the Court is willing to grant to Congress.
In Wickard, the Court considered the constitutionality of a statute that set limits on how much wheat farmers could grow. The goal of the statute was to increase prices by limiting supply. One farmer who grew wheat only for his own family’s consumption exceeded his wheat quota. He was fined for violating the act, and he appealed, arguing that Congress did not have the power to enforce the law against him because his wheat growing had no relationship to interstate commerce.
The Court held that enforcing the act against the local farmer was a valid exercise of Congress’s Commerce Clause power. The Court reasoned that the national wheat market is related to interstate commerce. Congress can take action that is designed to regulate the wheat market, even if not every individual regulated actually engages in interstate commerce. Although the farmer did not sell his wheat on interstate markets, if one were to assume that millions of other farmers could also do what he did, that would frustrate Congress’s purpose of reducing wheat prices.
Thus, as a result of the Wickard case, if an activity, when aggregated, would substantially affect interstate commerce, Congress can regulate it pursuant to the Commerce Clause.
In the Lopez case, the Court acknowledged the continuing validity of the Wickard case. But the Court concluded that even if the act of possessing a gun in a school zone were aggregated, the conduct still would not have a substantial affect on interstate commerce.
When it comes to the Obamacare case, the swing vote will come from Justice Kennedy. Kennedy signed the majority opinion in the Lopez case. However, he wrote separately to express his hesitation about allowing the Court to dive back into Commerce Clause issues.
It would be nice if Kennedy had written a clear opinion, which would have given us some insight as to how he would vote in future cases, but he did not. He basically said that each case should be determined on a case-by-case basis.
So, the lesson from the Lopez case is that in 1995, five justices, including Justice Kennedy, were willing to strike down laws for exceeding the authority granted to Congress pursuant to the Commerce Clause.