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.
More Than Twenty Cents 
If Kennedy had provided a clear opinion, he wouldn’t have been the swing vote. By it’s very nature, the Court’s middle has to be cryptic so everyone – including the Court’s other two wings – will have to wonder each and everytime which way they’ll lean, and so will seek to court them. (a little judicial pun-ditry there. A double dose!)
PS: I have believed this for nearly 30 years. (I just want to get on the record now so that I can win some votes when I run for president later.)
I love the puns. I can’t say I agree with you though. Law is better when people know and understand it. When that is the case, people can rely on it. The entire purpose of having law based on precedent is so that it is predictable. Justice is served when courts are bound by previous rulings. If opinions by the swing vote are written cryptically, people cannot rely on the law to produce the same result in future cases, and courts are less bound by precedent because future cases can also be decided cryptically.
Hmm, yes, the irony is ripe here, my friend. You started this series off with touting this as the most important case since Brown vs. Board of Education. If memory serves, Scott vs. Sanford and Plessy vs. Ferguson might rightly be called precedent for the Warren Court to consider at the time of Brown. From CJ Taney’s Dred Scott opinion: “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” But the Warren Court bucked precedent and said that not only are blacks eligible to be citizens, but they may enjoy the rights of other citizens, including to a free and fair education.
Certainly, I don’t want to trivialize the value of precedent. I do want the law to be accessible to “the masses” (there’s another pun-ish comment, since you know how much I love the Masses Publishing case). But he who is a slave to precedent approves of precedent’s approval of slaves. Someone write that down.
Anyway, cases decided by a swing vote are even better when cryptic because they allow for the Court, the government, and the country to save face with changing times. That’s why the Warren Court fought so vigorously to make its ground-breaking decisions unanimous, to make the point that certain liberties are beyond political influence and beyond contemporary (and thus fickle) standards of justice.
Ah, but you are confusing clarity with a slavish adherence to precedent. Certainly the Court needs to break precedent at times. But it should not play games when it does so by writing cryptic opinions (or hoping that the previous opinion was written cryptically so the current one can be written in such a way so as to sound consistent). No, when the Court reverses itself, it should clearly state what it is doing and the reasoning in support. Should Brown have been written cryptically? Certainly not: school systems would have been much more reluctant to desegregate. “Ah, but Brown was unanimous” you say. Sure, but what if it hadn’t been? If Brown had been 5-4, which it may have been if not for the appointment of Chief Justice Warren months before hand, the Court would nonetheless have been well served to write a clear, unequivocal decision declaring a reversal of a prior decision. Five votes may not be unanimous, but it is enough votes to say what the law is.
My point about precedent is not that it should never be overruled. My point is that, as you say, unless and until it is overruled, precedent is of critical value. Cryptic decisions are difficult to follow by other courts. They create little or not precedent. To a large extent, they leave the law ambiguous, which is a disservice to society.