As my last post discussed, the Supreme Court will hear arguments on the Constitutionality of the Patient Protection and Affordable Care Act on Monday. In order to understand the arguments, it will be necessary to understand a series of three cases that the Supreme Court has decided in the past twenty years.
This post will explain the Morrison case, a 5-4 decision decided in 2000. In that case, the Court struck down a portion of the Violence Against Women Act (VAWA).
Pop quiz! In 2008, which candidate cited the Morrison case as one that was wrongly decided after being asked by a journalist to identify a case in which the Supreme Court erred?
In the Morrison case, a female student at Virginia Tech was raped by two men. She sued the men in federal court pursuant to a provision of VAWA that gave women a right to sue after being subjected to gender-motivated violence.
The defendants argued that VAWA was unconstitutional because Congress was not acting pursuant to any of its designated powers when it passed VAWA. The federal government intervened in the case in order to defend the constitutionality of the Act. The government argued that Congress had been acting pursuant to its Commerce Clause Power when it passed VAWA. According to the government, gender-motivated violence affects interstate commerce by “deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business and in places involved in interstate commerce; … by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.”
However, the Court disagreed. In an opinion signed by both Justice Kennedy and Justice Scalia (more on the importance of their votes later), the Court explained that under the government’s logic, virtually any activity could be regulated by the federal government. If that were the case, the states would be left without spheres of influence, and our federalist system would be undermined.
The Court relied on a distinction between economic and non-economic activity. According to the Court, all of the cases that had found federal regulation constitutional under the Commerce Clause had involved laws that were economic in nature. Even the Wickard case involved a law designed to regulate the national wheat market. Even though the circumstances of the local farmer growing wheat seemed distant from interstate commerce, it was quite clear that the law was regulating economic activity.
However, it could not be said that VAWA was regulating economic activity. Although gender-motivated violence may have some effect on interstate commerce, by the same token nearly all interactions between people have some sort of effect on interstate commerce.
There are currently four Supreme Court Justices who will almost certainly vote to uphold the constitutionality of Obamacare: Breyer, Ginsburg, Kagan and Sotomayor. One of those four, Justice Breyer, wrote a dissenting opinion in Morrison.
Justice Breyer criticized the majority for protecting “traditional subjects of state regulation.” According to Breyer, “[t]he local pickpocket is no less a traditional subject of state regulation than is the local gender-motivated assault.” So, why should the Court protect one traditional subject of state regulation but not the other? The Court used a distinction between economic and non-economic activity that is not found in the Constitution.
Breyer ultimately concluded that the protection of federalism should be left more to the political process than to the courts. His opinion illustrates some of the difficulties in deciding Commerce Clause cases, which partially explains why four of the justices will likely defer to Congress.
The three most interesting votes in the Obamacare case will come from Justices Kennedy, Scalia and Roberts.
If the case ends up being a 5-4 decision, Kennedy’s vote will almost certainly decide the case. The concern for supporters of Obamacare is that Justice Kennedy voted to strike down the laws at issue in both Lopez and Morrison. He did write a concurring opinion in the Lopez case to articulate his concerns about striking down laws based on the Commerce Clause. However, he wrote no such opinion in the Morrison case.
The Obamacare case might actually not be a 5-4 decision. The Court could vote to uphold the law by a margin as high as 8-1 (there is almost no chance that Justice Thomas will vote to uphold the law). Justice Scalia’s vote is another interesting one. Scalia has been a stalwart member of the conservative side of the bench for more than twenty years. He signed the majority opinion in both Lopez and Morrison. But he is, in my opinion, the most intelligent member currently on the Court. He is intellectually honest and will not vote to strike down Obamacare just because it was passed by Democrats.
Finally, Chief Justice Roberts’ vote could be interesting. Supreme Court history is divided into the reigns of the various chief justices: “the Warren Court,” “the Rehnquist Court,” etc. If the Court strikes down the individual mandate by a 5-4 vote, many commentators will argue that the vote was political. That is an accusation that is anathema to chief justices. No chief justice wants to be remembered as the one who presided over the politicization of the Court. So Justice Roberts has an incentive to avoid a split along partisan lines in this case.