Overruled

by Damon Root

  “Because we were pushing [that doctrine] we were on the lookout” for promising cases, Pilon explained. And when he saw Lopez, “I thought, ‘My God, this is the kind of case we’ve been looking for!’”14 To help shape the terms of the looming debate, Pilon quickly commissioned a paper by University of Tennessee law professor Glenn Harlan Reynolds, who, with additional input from Pilon, marshaled a range of legal and historical evidence to explain why “Lopez is not about gun control or even about federal-state relations but about whether the Court is ready to hold Congress to its constitutional limits.”15

  The evidence cited in that paper included a groundbreaking 1987 Virginia Law Review article by the libertarian legal scholar Richard Epstein, then a law professor at the University of Chicago. “The expansive construction of the clause accepted by the New Deal Supreme Court is wrong, and clearly so,”16 Epstein concluded in “The Proper Scope of the Commerce Power.” Based on a careful analysis of numerous founding-era sources, including the text and structure of the Constitution, Epstein’s argument rang out like a constitutional call to arms. When Lopez hit the Supreme Court docket in 1994, Pilon and his colleagues at Cato were ready to heed that call.

  “Six weeks before oral argument in the case,” Pilon explained, “we sent copies [of the study] to each justice and to each of their clerks.”17 It did the trick. Not only did many of the justices voice skepticism about the government’s claims during oral argument, several justices even adopted the Cato study’s main points as their own. “Is the simple possession of something at or near a school ‘commerce’ at all?” Justice Sandra Day O’Connor asked Solicitor General Drew Days. “Is it?” When Days responded that he thought it was, O’Connor shot back, “I would have thought that it wasn’t, and I would have thought that it, moreover, is not interstate.”18

  Five months later, the Court nullified the law. It was the first time since the New Deal that a federal regulation had been struck down for exceeding the scope of the Commerce Clause. “We start with first principles,” Chief Justice William Rehnquist wrote for the majority. “To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. . . . This we are unwilling to do.”19

  Five years later, in United States v. Morrison, the Court extended this line of reasoning to void a provision of the Violence Against Women Act that created a federal cause of action for victims of gender-motivated crimes. The government’s argument in that case was essentially the same as its argument in Lopez: that violence against women ultimately has an adverse effect on the national economy. In both cases, the Court ruled that the Commerce Clause is not broad enough to reach such non-economic local activity.

  But then Raich came along in 2005, apparently slamming the brakes on the Supreme Court’s burgeoning “federalism revolution.” To the dismay of the libertarians, moreover, Raich arguably took Wickard’s “substantial economic effects” logic a step further by applying it to someone who was not even a commercial farmer. Was the Commerce Clause now truly dead and buried? Not necessarily. One big question remained unanswered in the wake of Raich. Namely, did the limits on congressional power articulated in Lopez and Morrison still retain any force? The libertarian lawyer Randy Barnett soon came to think that they did.

  “Unprecedented and Unconstitutional”

  Nowadays, Randy Barnett is best known as a constitutional scholar, a reputation he solidified in 2004 with the publication of his acclaimed treatise Restoring the Lost Constitution, which offers a definitive statement of the libertarian legal philosophy. But his relationship with America’s founding document was not always so friendly. In fact, Barnett once thought the Constitution was not worth the paper it was drafted on. “My view as a law student was, ‘If the Supreme Court is not going to take the text of the Constitution seriously, then why should I?’” he recalled with a laugh in 2012. “So I was going to do something like be a contracts professor where texts are treated with a lot more respect.”20

  After serving a stint in the prosecutor’s office in Cook County, Illinois, Barnett did precisely that, settling down to teach contracts law at Boston University. But things began to change for him shortly after he received a surprise invitation to speak on a panel about the First Amendment at the Federalist Society’s 1986 National Student Symposium, held that year at Stanford Law School. “It was a distinguished group of speakers and, as a relatively unknown contracts professor, I sorely wanted to accept,” Barnett later wrote, though at first he declined the offer. “I just do not do constitutional law,” he told the sponsors. But eventually he came around and began to prepare his remarks. Because he “wrongly thought [the Federalist Society] was a monolithically conservative group,” Barnett was not exactly optimistic about the reception his decidedly libertarian views would receive. Furthermore, he was planning to argue that while the First Amendment did not specifically mention the right to freedom of association, that unenumerated right was nonetheless entitled to constitutional protection. How would he justify that position to the conservative crowd? “In my speech, my answer was to read the text of the Ninth Amendment,” which declares, “‘The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the People.’”

  To his surprise, that rhetorical flourish proved to be a major crowd-pleaser. “A roaring cheer came up from the students,” Barnett remembered. “I was startled to discover that, contrary to their detractors, the Federalist Society was indeed a robust coalition of both conservative and libertarian students with a diversity of views among them.”21 Buoyed by the response, Barnett decided to give the Constitution a second look, starting with a deep dive into the text and history of the Ninth Amendment. Within a few years, Barnett had established himself as a leading academic authority on the topic.

  That reputation soon led him to the Commerce Clause, the area of constitutional law for which he is perhaps best known today. “I was at Boston University and I got a call from one of the lawyers for the Oakland Cannabis Buyers’ Cooperative,” Barnett recalled. The Oakland Cannabis Buyers’ Cooperative (OCBC) was one of the many outfits in California working to facilitate the legal distribution of medical marijuana under the 1996 Compassionate Use Act. Facing federal drug charges, OCBC was then fighting for its survival in court. “They were going around the country trying to find someone who knew something about the Ninth Amendment,” Barnett explained. “The principal part of their case was a Commerce Clause challenge. It was only the trial judge that said you should brief the Ninth Amendment. So I got into the Commerce Clause then.”

  Barnett’s own medical marijuana case, Gonzales v. Raich, grew directly out of that experience. “We brought the Raich case because we wanted facts that would better fit with a Commerce Clause challenge,” he said. “In OCBC you have money and marijuana changing hands, which is economic activity. In fact, it’s commerce.” By contrast, his clients, a brain cancer patient named Angel Raich and a victim of chronic back pain named Diane Monson, had not purchased anything. Their physician-prescribed marijuana was entirely homegrown, cultivated either by themselves or by their caretakers. “We wanted a case in which there was no money and marijuana changing hands so there wasn’t even economic activity,” Barnett explained.

  When Raich ultimately came down against him, Barnett recalled, he decided, “there would never be another Commerce Clause case” because the Court’s interpretation seemed as expansive as it could possibly get. But Congress and the White House surprised him in 2009 when they settled on the idea of forcing every American to buy health insurance as the centerpiece of the Patient Protection and Affordable Care Act. “It turns out they found something new that they hadn’t ever done before,” he said. “And the very fact that it’s new means it’s subject to question. If they were just sticking wit
h it, just trying to regulate interstate activity the way they were before, we wouldn’t be able to stop them.”22

  In both Lopez and Morrison, Congress had sought to regulate non-economic activities by citing their aggregate impact on interstate commerce. But the Supreme Court refused to “pile inference upon inference,” following the hypothesized chain of effects from gun possession or rape to “commerce . . . among the several states.” As the Court held in Morrison, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”23 Raich continued this trend, with the Court deeming the act of growing your own marijuana to be economic.

  Now consider the individual mandate. The failure to buy health insurance is not even an activity, Barnett came to think, let alone an economic one. Because the Supreme Court has never said Congress may regulate inactivity, Barnett and his allies would argue, the individual mandate violated the Court’s precedents (as well as the long-lost original meaning of the Commerce Clause). For federal judges who were interested in placing some limits on congressional power but who nevertheless felt themselves bound by the Supreme Court’s expansive New Deal interpretation of the Commerce Clause, the distinction between activity and inactivity might just prove to be an attractive legal argument.

  Barnett, along with two co-authors, Nathaniel Stewart and Todd Gaziano, spelled out this argument in a seminal 2009 Heritage Foundation paper titled “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional.”24 Heritage, a prominent conservative think tank in Washington, unveiled the paper at a December 9, 2009, event featuring a debate between Barnett and other legal experts on the mandate’s constitutionality. Also present was Republican Senator Orrin Hatch of Utah, who delivered a well-received keynote speech. Later that month, Hatch and other Senate Republicans raised a point of constitutional order against the Affordable Care Act, which was still being debated in Congress. Those Republicans cited Barnett’s Heritage paper and also had it entered into the Congressional Record. From that point forward, the GOP would attack the ACA on constitutional grounds.

  Barnett formally joined the legal challenge roughly a year later, when the National Federation of Independent Business (which had joined Florida’s suit) retained him as counsel. Until that point, he said, “I was attempting to influence the discourse solely from the outside of the case, through blogging and writing.”25 It worked. If you read Barnett’s 2009 Heritage paper and related writings today, you will find virtually every major argument that was deployed against the individual mandate through every stage of litigation, from Florida’s original March 2010 lawsuit to the March 2012 oral arguments at the Supreme Court. In other words, a libertarian lawyer helped spark the biggest challenge to federal power since the New Deal. What’s more, the conservative legal establishment welcomed him with open arms.

  Setting the Stage

  The challenge kicked off officially on March 23, 2010, when Florida, joined by twelve other states, and Virginia, acting alone, filed separate federal lawsuits charging the ACA with exceeding congressional authority and undermining the principles of federalism. As the Florida complaint put it, “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage.”26 Several other challenges soon followed, including suits by the Thomas More Law Center, a public-interest law firm focusing on religious freedom, and Liberty University, the conservative Christian college founded by the late Jerry Falwell.

  But it was the Florida-led challenge that won big enough to reach the Supreme Court. Its first victory came on January 31, 2011, in a ruling by U.S. District Judge Roger Vinson. “Congress must operate within the bounds established by the Constitution,” Vinson declared, striking down the individual mandate for exceeding those bounds. Furthermore, Vinson ruled, because the ACA did not include a so-called severability clause, which would have specified what happens to the rest of the law when a single provision is struck down, “the entire Act must be declared void.”27

  A little over six months later, on August 11, the U.S. Court of Appeals for the Eleventh Circuit partially affirmed Vinson’s ruling, voting to strike down the individual mandate but allowing the rest of the ACA to stand. “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers,”28 the Eleventh Circuit declared.

  It was a major blow to the Obama administration, which just two months earlier had won a resounding victory for the health care law at the U.S. Court of Appeals for the Sixth Circuit. In that earlier case, conservative Judge Jeffrey Sutton, a George W. Bush appointee and former clerk to Justice Antonin Scalia, had surprised many observers by voting with the majority to uphold the ACA. One reason he did so, Sutton explained, was because of judicial restraint. “Time will assuredly bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation,” Sutton wrote, “allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”29

  Because the Sixth and Eleventh Circuits were now in open disagreement, the Supreme Court was virtually guaranteed to step in and resolve the split. In the meantime, the Fourth Circuit voted to uphold the law on September 8 and the D.C. Circuit did likewise on November 8. Six days after the D.C. Circuit’s ruling, the Supreme Court made the announcement everyone was waiting for: The Court would hear oral arguments the following year to determine the constitutionality of the Affordable Care Act.

  The Stakes

  Oral arguments were scheduled to run for a modern record of five and a half hours (later expanded to six hours) spread out over the course of three days: March 26, 27, and 28, 2012. In addition to the constitutionality of the individual mandate, the Court would consider three other issues.

  The first was whether the legal challenge to the ACA must be dismissed under the terms of the Anti-Injunction Act, an 1867 statute that says, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”30 In other words, a tax cannot be challenged in court until it has been assessed and paid. Did the “shared responsibility payment” imposed on people who disobey the individual mandate count as a tax, even though Congress specifically called it a penalty? If so, the legal challenge to the ACA would have to wait until 2015, when the mandate was scheduled to take effect. The Court set aside ninety minutes for this question on March 26.

  The second additional question concerned the issue of severability. In his January 2011 ruling, Judge Vinson held that because the ACA lacked a severability clause, the whole law must fall if the mandate is ruled unconstitutional. The Supreme Court reserved ninety minutes on March 28 to hear arguments for and against that proposition. Later that same day, the Court would hear one final question: Does the ACA’s expansion of Medicaid, the joint federal-state health care program for the poor, represent an unconstitutionally coercive use of Congress’s spending power? One hour was set aside for that.

  But the main event was scheduled for the morning of March 27, when the Supreme Court would devote two full hours to the constitutionality of the ACA’s controversial centerpiece: the individual mandate.

  Judicial Modesty

  To prevail, the Obama administration needed to persuade at least one of the Supreme Court’s five right-leaning justices to uphold the ACA. Conventional wisdom quickly settled on the most likely candidate. “The fate of health care reform is where it was yesterday,” announced Slate reporter Dave Weigel, “in the hands of Supreme Court Justice Anthony Kennedy.”31 Time magazine made the same confident prediction, adorning its June 18, 2012, issue with a close-up of Kennedy’s face under the blaring headline, “From Gay M
arriage to Obamacare, Justice Anthony Kennedy Is the Decider.”32

  Kennedy, a perennial swing vote on the Court, was indeed a potential ally for the federal government. But the Obama administration had an equally plausible ally in the form of Chief Justice John Roberts—a fact many observers failed to grasp at the time. The evidence, however, was right there in his record. For example, in the 2010 case United States v. Comstock, which posed the question of whether the Necessary and Proper Clause allowed federal officials to order the indefinite civil commitment of “sexually dangerous” persons who had already finished serving their prison sentences, Roberts sided with the Court’s liberals, endorsing a broad understanding of federal power. The health care case presented the chief justice with a similar opportunity.

  Then there’s the issue of judicial restraint. During his 2005 Senate confirmation hearings, Roberts repeatedly stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and consensus he extended even to the abortion-legalizing Roe v. Wade, a case Roberts conceded to be “the settled law of the land.”33 He made a related point about Kelo v. City of New London, the 2005 opinion affirming the use of eminent domain to broaden the local tax base. Responding to a statement by Republican Senator Sam Brownback of Kansas, who described Kelo as a disastrous ruling that “really shocked the system” and inspired “great criticism,”34 Roberts pointed to the existence of post-Kelo legislation aimed at protecting property rights as “a very appropriate approach to consider.” In other words, Roberts explained, the Supreme Court’s ruling “leaves the ball in the court of the legislature, and I think it’s reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people’s rights as well.”35