Post by Kate N.

In a landmark decision that was delivered last week, the Supreme Court ruled that under the Commerce Clause the Affordable Health Care Act (AHCA) was constitutional.

In almost any news article or editorial written about the AHCA decision there have been references to the Commerce Clause and to what extent the judges used it in their dissenting or concurring opinions. David Manwaring, who teaches American Legal System and who talked with us last week about the details of the AHCA case, explains public approval, or disapproval, of the Court and the impacts of the Commerce Clause on the Court’s decisions.

A recent poll conducted by The New York Times and CBS News found that only 44% of Americans approve of the job the Supreme Court is doing. Why has there been this shift towards a negative view of the Supreme Court?

The Supreme Court has long held an ambiguous relationship with the American people. While academics have compared the nine lifetime appointees unfavorably with the elected and accountable branches of government, polls consistently show the justices to have an enormous edge in popular esteem. In particular, these same polls show the Court enjoying a high level of respect among people who disagree strongly with its decisions. This has been attributed to a lingering belief in the Court as a neutral arbiter.

Too many “wrong” decisions over a short time can erode that institutional support. The justices generally have had the sense to trim their political sails to avert any harm. Public tolerance has survived even under an increased awareness of an ideological tilt. It was obvious to anyone paying attention that the Warren Court was very liberal, while the Court under Rehnquist leaned heavily conservative. The perception of non-partisan good faith persisted.

Two factors may be contributing to the deteriorating image. First is the degeneration of the selection process for all federal judicial levels into a bare-knuckle Democrat-Republican brawl. Second, and more serious, is an unlucky sequence of publicly damaging decisions. Watershed, of course, was Bush v. Gore. In hurriedly moving George W. Bush into the White House, the conservative majority marshaled, in my opinion, arguably dubious legal arguments they specified should not be cited in any other case. The second self-inflicted wound was Citizens United v. FEC, another 5-4 decision allowing corporations to spend unlimited amounts of money on political campaigns.

These factors are what I think has driven the Court’s approval rating to an unprecedented low. We could accept an erring court, even an ideological one, but now the perception is one of a partisan Court, and that is one push too far.

What is the Commerce Clause and how does it impact the AHCA ruling?

Chief Justice John Marshall laid down the authoritative definition of the Commerce power in Gibbons v. Ogden (1834), and a very broad one at that:

• Commerce: any activity even faintly economic in nature
• Interstate commerce: commerce “involving more states than one”
• Congress’ regulatory power over said commerce: unlimited

Even though it was broadly stated, Marshall assumed he was leaving 90% of the jurisdiction to the states. Economic and technological development over the next 120 years gave us the new, interdependent, “everything affects everything” economy, placing Marshall’s definition in a very different light—as a statement of ubiquitous national power. The Supreme Court tried to restrain this development in the early twentieth century. They limited “commerce” to buying, selling, and shipping, and allowing federal regulation only of activities directly affecting that commerce.

The restraints all collapsed under pressure from the Great Depression and the New Deal. The question shifted to whether an activity substantially affected interstate commerce. The Supreme Court eventually concluding that a federal regulation was valid if Congress had a rational basis for believing that an activity (frequently the aggregate of a lot of little activities) influenced interstate commerce.

Given the economic realities, this gave birth to a firm assumption, commonplace in law schools, that the commerce power could provide adequate support for anything Congress really wanted to do.

This cozy assumption was disturbed by the United States v. Lopez (1995) (invalidating the Gun-Free School Zones Act) and United States v. Morrison (2000) (shooting down the Violence Against Women Act) decisions. Both cases rested on a simple logic: the commerce power must have some limit. To uphold these laws would involve no limiting principle, and would confirm that there is no limit.

While this logic seemed to pose a serious threat to 40 years of decisions based on the assumption that there indeed was no limit, the majority made no move to expand the threat. Indeed, they backed off a little in Gonzales v. Raich (2005), upholding the application of federal drug laws against a woman growing marijuana for her own personal use with a license from the State of California. Justice Scalia, providing the crucial fifth vote, wrote an interesting concurring opinion. He approved regulation of even private, non-economic conduct as part of a broader scheme of regulation of interstate commerce.

It is important to keep in mind that Lopez and Morrison purported to accept and keep intact all the previous commerce power precedents. The complete and adequate precedent governing the health care case is Wickard v. Filburne (1946).

Filburne grew wheat in excess of the amount permitted by federal price stabilization regulations, but kept the excess at home, feeding it to his livestock. Nonetheless, a unanimous Court ruled that he could be penalized. In growing his own wheat for feeding, Filburne was told he was withdrawing his demand from the national wheat market. Together with parallel withdrawals by thousands of other Filburnes, this had a substantial effect on the wheat market. The relevance of this holding is obvious. After all, Filburne’s only “economic conduct” was not buying wheat.

The Obama administration’s lawyers focused on the big picture, stressing the burden placed on the health care system by those unable or unwilling to carry health insurance. Uninsured persons inevitably wound up needing and receiving uncompensated medical care, which costs were passed on by health care providers to insurance companies, and by insurance companies to the insured in the form of higher premiums. They also invoked Scalia’s Raich rationale, stressing the scope and complexity of the industry-wide regulatory scheme, which would be crippled without inclusion of the individual mandate.

Lawyers for the 26 state plaintiffs laid great stress on the passive, non-commercial character of the uninsured, who they claimed, were being coerced into entering commerce. The rationale rested on an obvious assumption that Filburne is no longer binding in any way that would save the AHCA.

Chief Justice John Roberts’ swing vote closed the long court battle over the AHCA. Time will tell if the Obamacare decision will help or hinder the Supreme Court’s public image, but for now we all get to see history unfold.