On the Attempt to Revive Legally Enforceable Federalism Boundaries
An important theme of twentieth century constitutional discussion and debate concerned whether our federal system—with its allocation of powers to the nation and the states--is most meaningfully preserved by judicial efforts to define and legally enforce its appropriate or intended boundaries. Herbert Wechsler developed a theme of James Madison’s, contending that federalism’s boundaries may well be most effectively maintained by the natural safeguards built in to the political system. Herbert Wechsler, Principles, Politics, and Fundamental Law 49-82 (1961). The Supreme Court itself has been known to articulate the view that the “principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 469 (1985). There are, of course, those who doubt the adequacy of these political safeguards, and the Supreme Court has attempted to renew a commitment to enforceable federalism boundaries in the last decade. But there are good reasons to doubt whether it truly makes sense to attempt to significantly limit national power by constitutional construction—and reasons to see the attempt to impose such limits as a form of conservative “activism” that conservatives, advocates of judicial self-restraint, generally purport to avoid.
Part of the critique of judicial efforts to revive legally enforced federalism boundaries centers on the failure of courts to supply a principled, coherent rationale for such rulings. An important challenge thus facing the justices now engaged in conservative-right activism is to display more success at articulating rationales for their own rulings.
A classic example of the attempt to rely on the premises of a new form of activism is the decision of U.S. District Judge Roger Vinson, invalidating the historic healthcare reform law on the grounds that it violates the “system of dual sovereignty” created by the Constitution. State of Florida v. United States Department of Health and Human Services, No. 3:10-cv-91-RV/EMT (Jan. 31, 2011) [hereinafter State of Florida], at p. 2. (In fact, it has been decades since thoughtful students and scholars have perceived the nation as rejecting a doctrine of “dual sovereignty.”) The court’s decision focused especially on whether Congress’s power to regulate commerce could warrant the new law’s “individual mandate,” a provision which requires individuals to purchase health insurance. The court freely acknowledges that “the exercise and interpretation of the commerce power has evolved and undergone a significant change ‘as the needs of a dynamic and constantly expanding national economy has changed.’” Id. at 27. And indeed, as Professor Bryant has stated, “[b]etween 1936 and 1995, the Court upheld every federal statute regulating private conduct challenged as beyond Congress’s power under the Commerce Clause.” A. Christopher Bryant, The Third Death of Federalism, 17 Cornell J.L. & Pub. Pol’y 102, 138 (2007) [hereinafter Death of Federalism].
Even so, the court rejected Congress’s authority to impose a requirement that individuals purchase health insurance, emphasizing that the mandate is “‘novel’ and ‘unprecedented.’” State of Florida, supra, at 38. In turn, the “regulation” of commerce, Judge Vinson concludes, requires that Congress be controlling the “activity” of affected individuals, and not merely their decision not to purchase health insurance. The judge focused both on the notion that Congress cannot “regulate inactivity” and a perceived departure such a mandate entails from America’s commitment to liberty and its revolutionary heritage:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting—as was done in the Act—that compelling the actual transaction is itself ‘commercial and economic in nature, and substantially affects interstate commerce’ [see Act §1501 (a) (1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power’, and we would have a Constitution in name only.
State of Florida, supra, at 42.
The court’s first step in this analysis is to contend that it should avoid “a radical departure from existing case law,” given that upholding as a valid exercise of the commerce power the mandate to obtain health insurance would mean that “Congress could do almost anything it wanted.” Id. While it certainly is true that the contemporary Supreme Court has also relied on the principle of avoiding unlimited power under the commerce clause, it also remains true that the bulk of federal commerce clause jurisprudence is almost universally regarded as permitting “congressional regulation of virtually any private conduct.” Bryant, Death of Federalism, supra, at 147. Accord, Thomas B. McAffee, Jay S. Bybee and A. Christopher Bryant, Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments 207 (Praeger Publishing, 2006) (observing that “[f]or many of the Justices (a majority throughout the greater part of this period [1936-1995]), the Tenth Amendment was a dead letter, at least insofar as the judiciary was concerned”); id. at 203 (in the period following the 1995 Lopez decision, “the federal intermediate appellate courts rejected every Commerce Clause challenge to a major federal statute”).
Even more recently, the Supreme Court itself has asserted that “where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class.” Gonzales v. Raich, 545 U.S. 1, 23(2005). The class of decision-making about health insurance, as engaged in by both businesses and individuals, is surely a class of activities within the reach of federal power—though the District Court rejected the assertion that decision-making contrary to the mandate to buy health insurance constitutes economic activity at all. State of Florida, supra, at 44-63.
The opposite ruling, however, could not possibly be a “radical departure from existing case law,” considering that the Court’s most recent important commerce clause case, the Raich decision, “endorsed a reading of congressional power so broad as to be virtually unlimited.” Bryant, Death of Federalism, supra, at 151. One scholar has observed that in Raich, the Court confronted “a case dividing the American right-wing’s social conservative and libertarian constituencies,” id., and embraced an anti-drug morals-based decision. Moreover, it chose to characterize growing and possessing marijuana—given the interstate market for illegal drugs—as economic in nature, though the Court had previously found gun possession (where an interstate market surely exists) to be non-economic. Id. at 149.
As we saw, Judge Vinson’s second justification for rejecting the mandate is its alleged departure from “liberty” and the nation’s revolutionary heritage. Judge Vinson analogizes the mandate to buy health insurance with the “tax on all tea sold in America,” arguing that its supporters would recognize “the power to force people to buy tea in the first place.” Here Judge Vinson tracks with Fox News’s Sean Hannity, who unveiled a “liberty tree” on his program and contended that “our liberties” are “once again threatened,” such that “the fruits of our liberty” are being picked clean by “this administration.” Jill Lepore, The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History 8 (2010) (quoting Sean Hannity, The Hannity Show, Sept. 2, 2009).
But surely Lepore’s analysis is right that such rendering of the events leading to the American revolution is “fundamentalist history” rather than an honest recounting of what happened and what the revolutionary Americans were thinking, doing, and saying. As “recognizable and compelling” as the Boston Tea Party seems to modern Americans, id. at 71, the theme of “taxation without representation,” id. at 84, the words on the lips of almost all 1773 revolutionary American colonists, basically has nothing to do with a health care bill that was enacted by a Congress elected by the people of the United States.
America’s heritage is worth preserving, but not by reading the Constitution as though it were scripture and the events of the revolution as though they are sacred. See id. at 152-65. Our debate over public policy and modern legislation, moreover, is not enhanced by reading America’s heritage the way a fundamentalist reads the scriptures.