by Damon Root
Or at least four of them did. Justice Clarence Thomas did not ask a single question during oral argument that morning, a peculiar habit of silence he has maintained since 2006, which was the last year he asked a question in court. But Thomas’s views on the Fourteenth Amendment would not remain hidden for long.
On June 28, 2010, the Supreme Court announced its decision in McDonald v. Chicago. As expected, the Court incorporated the Second Amendment against the states and invalidated Chicago’s handgun ban and related gun control provisions. But there was a twist. Only four justices—Roberts, Scalia, Kennedy, and Alito—had voted for incorporation via the Due Process Clause. Thomas had filed a separate concurring opinion in which he joined the Court in its outcome but reasoned his own way to the conclusion. Acting alone, Thomas sided with the libertarians and voted for Second Amendment incorporation via the Privileges or Immunities Clause.
“I believe the original meaning of the Fourteenth Amendment offers a superior alternative,” Thomas wrote, “and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.”66 In other words, while the Second Amendment now applied against all fifty states, a majority of the Supreme Court could not agree on precisely what part of the Fourteenth Amendment made it applicable.
In his fifty-six-page opinion, Thomas offered an originalist tour de force on behalf of his preferred solution. “The record makes plain,” he maintained, surveying sources ranging from the congressional debates of 1866 to the writings of leading abolitionists like Frederick Douglass67 to contemporaneous accounts of Southern officials forcibly disarming the freedmen under the Black Codes, “that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty.”68
As for the conservative fear that reviving the Privileges or Immunities Clause would unleash a “cornucopia” of judicial activism, Thomas was untroubled. “Ironically, the same objection applies to the Court’s substantive due process jurisprudence,” he retorted. “But I see no reason to assume that such hazards apply to the Privileges or Immunities Clause. The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application.”69
A Libertarian Victory?
McDonald v. Chicago was a profound victory for gun rights, as the Supreme Court finally granted the Second Amendment its full due as a member of the Bill of Rights applicable to all fifty states. But it was not the sweeping libertarian victory Alan Gura had fought for. After all, the Privileges or Immunities Clause was not restored, nor was Slaughter-House wiped from the books. Yet Gura told me he has no regrets about the case, and in fact believes his controversial strategy was fully vindicated by the final outcome. For one thing, as Justice Thomas proved in his concurrence, there simply were not five votes to incorporate the Second Amendment on due process grounds alone. But just as important, Gura stressed, is the fact that McDonald is “the first time in history that the Privileges or Immunities Clause was consequential to a decision in this way. It’s the first time that the anti-Slaughter-House position was influential in determining the outcome of the case.” That lesson will not be lost on future generations of lawyers, Gura maintained. “Students will have to read McDonald in law school. They’ll have to read Thomas’ opinion.”70
Alan Gura is not the first libertarian lawyer to look to the future and settle in for the long haul. In his 1990 book Unfinished Business, Institute for Justice co-founder Clint Bolick (who counts his old EEOC boss Clarence Thomas as a friend and mentor) urged the fledgling libertarian legal movement to remember that meaningful change does not come quickly in our constitutional system. “It took the NAACP nearly half a century to dismantle separate but equal,” Bolick wrote. “It may take a long time to dismantle Slaughter-House.”71
Judging by that timeline, the libertarians are just getting warmed up.
Seven
Obamacare on Trial
The date was November 29, 2004, and Randy Barnett, a libertarian lawyer and Boston University law professor, was defending the use of medical marijuana before the U.S. Supreme Court. His case, Gonzales v. Raich, centered on a clash between California’s Compassionate Use Act, a 1996 voter initiative legalizing the use of medical marijuana within state borders, and the federal Controlled Substances Act, which outlawed the use of marijuana for any purpose anywhere in the United States. The question before the Court that day was whether the federal ban exceeded the bounds of the Commerce Clause, the constitutional provision authorizing Congress to “regulate commerce . . . among the several states.”
Standing at the lectern, Barnett told the justices that his lead client, a critically ill cancer patient named Angel Raich, was not engaged in interstate commerce because the medical marijuana she had legally used under California law had been grown and consumed entirely within the confines of that state. “The class of activities involved in this case are non-economic and wholly intrastate,”1 he declared in his opening remarks. Because the Commerce Clause was not an unlimited grant of federal power, Barnett maintained, the Controlled Substances Act should not effectively trump California’s efforts to legalize medical marijuana. If the Supreme Court was serious about holding Congress to its constitutional limits, Barnett argued, then the federal ban on marijuana must be overruled as applied to Angel Raich. She was no criminal, and the federal government should not be permitted to treat her as such.
Unfortunately for Barnett, a majority of the Supreme Court thought differently. By a vote of six to three, with both conservative Justice Antonin Scalia and moderate conservative Anthony Kennedy voting in favor of the federal government, the Supreme Court upheld the restriction. “Well-settled law controls our answer,” declared the majority opinion of Justice John Paul Stevens. “The [Controlled Substances Act] is a valid exercise of federal power, even as applied to the troubling facts of this case.”2
Barnett’s opponent that morning in Raich was Solicitor General Paul Clement, an official in the George W. Bush administration. Clement told the Court that under existing precedent, including the landmark New Deal case of Wickard v. Filburn, the federal government enjoyed vast regulatory powers via the Commerce Clause and, moreover, the Supreme Court was in no position to second-guess the government’s legislative judgments in this realm. His arguments carried the day and scored a win for judicial deference.
It was a painful defeat for the libertarian legal movement, whose members saw the ruling as a potential deathblow for the cause of limited government. Barnett was so dejected at the time, he later admitted, he thought that, “there would never be another Commerce Clause case.”3 And at least one member of the Supreme Court appeared to share his despondency. “If Congress can regulate this under the Commerce Clause,” fumed the dissenting opinion of Justice Clarence Thomas, “then it can regulate anything—and the Federal Government is no longer one of limited and enumerated powers.”4 It was a classic dissent by Thomas: forcefully argued, replete with historical evidence, and cast alone. Contrary to his (false) reputation as Scalia’s ideological twin, Thomas routinely breaks with his fellow conservatives in order to advance his own distinctive brand of libertarian-flecked jurisprudence.
But as it turned out, Gonzales v. Raich was not the last Commerce Clause case. Just seven years later, in fact, Barnett and Clement were back before the Supreme Court to present new arguments about the proper scope of federal authority in National Federation of Independent Business v. Sebelius. Except this time, the two former adversaries were fighting on the same side—and the stakes could not have been higher. Indeed, the dispute this time around was over nothing less than the constitutionality of President Barack Obama’s signature legislative ach
ievement, the sweeping health care overhaul known as the Patient Protection and Affordable Care Act of 2010, or ACA for short.
At issue was a lawsuit originally filed by Florida and twelve other states on the very day the president signed the health care reform bill into law. Although the suit challenged several components of the legislation, its main target was the controversial “requirement to maintain minimum essential coverage.” Also known as the individual mandate, this provision was designed to force all Americans to obtain medical coverage meeting minimum standards set by the government. To justify the health insurance mandate, the act cited Congress’s powers to regulate interstate commerce. By the time the legal challenge reached the Supreme Court, a total of twenty-six states had joined it, along with the National Federation of Independent Business (whose legal team included Barnett) and several individuals.
Facing the Supreme Court in March 2012, Paul Clement, who was now serving as the attorney for those twenty-six states, relied in part on libertarian legal theories developed and popularized by his old foe Randy Barnett, telling the justices that Congress did not possess the power under the Commerce Clause to force every American to buy health insurance. “The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce,”5 he declared.
It was a tectonic shift on the American right. In less than a decade, Barnett had gone from being a libertarian outsider to a highly influential conservative insider. Where he had once squared off against the combined forces of the Bush administration, Barnett was now providing intellectual ammunition for elite Republican lawyers to use in the national battle over health care reform. What’s more, the conservative rank and file joined those elites in abandoning any lingering fealty to the idea of judicial deference—they too wanted to see the health care law struck down by the Supreme Court. Libertarian legal thinking had entered the conservative mainstream, and the future of Obama’s presidency hung in the balance.
“Are You Serious?”
While it might seem inevitable in hindsight that the Supreme Court would weigh in on the constitutional merits of the individual mandate, that outcome was far from preordained. “When the idea for the challenge was created,” observed Orin Kerr, a conservative George Washington University law professor and former clerk to Justice Anthony Kennedy, “it was understood to be a long shot.”6 The legal challengers faced all sorts of obstacles along the way, including the daunting task of persuading federal courts to plunge into the highly political thicket of health care reform. “We were confident that if we got one ruling against [the ACA], it would go to the Supreme Court,”7 said Ilya Shapiro, a libertarian lawyer and senior fellow at the Cato Institute’s Center for Constitutional Studies, who wrote multiple amicus briefs supporting the challenge and provided early legal advice to Florida and the other state challengers.
Some of the Affordable Care Act’s supporters didn’t think Shapiro and his allies would score even that one victory. Back in October 2009, a reporter asked Democratic House Speaker Nancy Pelosi, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Her reply: “Are you serious?” Nadeam Elshami, Pelosi’s communications director, later amplified the response, telling CNS News, “You can put this on the record: That is not a serious question.”8
It seemed serious enough to me as I sat in the Supreme Court on March 27, 2012, watching one justice after another grill Obama’s solicitor general, Donald Verrilli, about the individual mandate’s constitutional defects. And Verrilli was not only taking heat from the Court’s most conservative members; he also faced extremely tough questioning from Justice Kennedy, the right-leaning moderate who often casts the decisive fifth vote in tight cases. “I understand we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way,” Kennedy asked Verrilli as a hushed courtroom looked on, “do you not have a heavy burden of justification to show authorization under the Constitution?”9
Suddenly, the legal challenge didn’t seem like such a long shot anymore. How did the challengers narrow the odds to a razor-thin margin? By constructing a potent, case-specific legal strategy on a foundation of painstaking libertarian legal scholarship built over the course of three decades.
“Commerce . . . Among the Several States”
On its face, the Commerce Clause seems like a straightforward proposition. Article One, Section Eight of the U.S. Constitution grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The framers and ratifiers of the Constitution understood that middle part, “among the several states,” to mean that Congress may regulate commerce that crosses state lines but not the economic activity that occurs within each state.
In Federalist 42, James Madison explained that without the Commerce Clause, Congress would be powerless to clear away the tariffs, monopolies, and other interstate trade barriers erected by various state governments under the Articles of Confederation. “A very material object of this power,” he wrote, “was the relief of the States which import and export through other states from the improper contributions levied on them.”10 Madison and the other framers believed that if the new United States was going to make it, the federal government needed to secure what today we might call a domestic free trade zone.
Compared to the decentralized Articles of Confederation, the Commerce Clause was a very significant grant of power to the new federal government—but it was not a blank check. As Alexander Hamilton, normally a champion of broad federal authority, explained in Federalist 17, the Commerce Clause did not extend congressional power to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.”11 The Commerce Clause gave Congress no power to touch intrastate economic activity. Indeed, the framers understood “commerce” to refer to the trade or exchange of goods, including transportation, not to commercial endeavors such as farming or manufacturing.
That original understanding held sway for a century and a half, until the Supreme Court dramatically expanded the federal government’s powers under the Commerce Clause in a series of New Deal cases, culminating in the 1942 ruling in Wickard v. Filburn. At issue in Wickard was Congress’s attempt, via the Agricultural Adjustment Act of 1938, to inflate crop prices by limiting the amount farmers were permitted to grow. Among those farmers was Roscoe Filburn of Montgomery County, Ohio, who violated the law by planting twice the amount of wheat allowed by his quota. In his defense, Filburn noted that he did not send that extra wheat off to the market. Instead he consumed it entirely on his own farm, either by feeding it to his animals or turning it into flour for use in his kitchen. Yet according to the Supreme Court, those actions still counted as “commerce . . . among the several states.” Filburn’s extra wheat may not have crossed any state lines, Justice Robert Jackson wrote for the majority, but he and other similarly disobedient farmers nevertheless exerted a “substantial economic effect”12 on the interstate wheat market by growing what they otherwise might have bought.
Wickard opened the door to a wide variety of government actions that would have previously been seen as unconstitutional under the Commerce Clause, including federal penalties for local crimes like loan sharking and federal wage controls for state and municipal employees. In the 2005 Raich case, the Supreme Court arguably went further than Wickard did by upholding the federal ban on marijuana even as applied to local medical use that was permitted under state law. Taken together, Wickard and Raich meant that Congress possessed vast powers to regulate the American economy, including purely local activities that in the aggregate can be said to affect interstate commerce. Congress relied on the language of these rulings in drafting the Patient Protection and A
ffordable Care Act. As Section 1501 of the law puts it, the individual mandate “is commercial and economic in nature, and substantially affects interstate commerce.”13
But there was a catch. As the libertarian and conservative lawyers who crafted the legal challenge to the health care law would later emphasize, Wickard and Raich were not the only Commerce Clause precedents that mattered.
“We Start with First Principles”
On November 8, 1994, the Supreme Court heard oral argument in the case of United States v. Lopez. At issue was whether the Commerce Clause allowed Congress to forbid the possession of a gun within 1,000 feet of a school. Unlike the federal price-rigging scheme upheld in Wickard, the Gun-Free School Zones Act challenged in Lopez had no direct connection to economic activity, whether local or national. Instead the government claimed that gun violence, taken in the aggregate, undermined the nation’s educational system, which in turn substantially affected the U.S. economy.
The case originated in 1992 when a twelfth grader in Texas was arrested for bringing a gun to school and subsequently charged with violating the Gun-Free School Zones Act. In response, the young man’s lawyer raised the surprising argument that the case should be dropped because Congress lacked the power to regulate what went on in and around a public school. To say the least, that sort of thinking had gone out of fashion after Wickard in the 1940s. But in another surprise twist, the U.S. Court of Appeals for the Fifth Circuit accepted the argument, finding the Gun-Free School Zones Act to be an illegitimate exercise of congressional authority.
“When we saw that case coming up from the Fifth Circuit, you can imagine how excited we were,” recalled Roger Pilon, the founder and director of the Cato Institute’s Center for Constitutional Studies. This was not your run-of-the-mill gun case, he realized, it was an opportunity to advance the libertarian agenda by curbing federal power. For years, Pilon and his colleagues had been advocating the revival of a legal principle known as the “doctrine of enumerated powers.” Put simply, it’s the idea that the government may only exercise those powers specifically granted to it by the text of the Constitution. And even then, the government must not stray too far from the text.