Fall 2011

Worse Than Lochner

Worse Than Lochner

Tuesday, November 15, 2011 - 4:45pm
Ian Millhiser

*

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden. Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. And, of course, half Congress thinks that health reform is unconstitutional.

Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution?

And yet, there is a growing movement on the American right that believes just that. Part I of this Essay begins in familiar territory: the battle over the Commerce Clause. It explains how the ubiquitous lawsuits challenging the Affordable Care Act (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart—a methodology which allows judges to impose novel and extra-textual limits upon Congress’s enumerated powers. As this Part makes clear, a legal theory that would strike down the ACA bears no resemblance to the much more modest limits on congressional power outlined by modern cases such as United States v. Lopez and United States v. Morrison. Unlike Lopez and Morrison, cases like Hammer and the two recent district court decisions striking down the ACA have no grounding in constitutional text.

Part II dives even further back into constitutional history. It explains that a growing number of prominent conservatives, including many current Members of Congress, want to revive a 230-year-old constitutional “ghoul” which would so completely eviscerate federal power that even the Lochner-era Supreme Court unanimously decided that it must remain buried. Under these conservatives’ vision of congressional power, cherished federal spending programs such as Social Security, Medicare, Medicaid, and Pell Grants would all cease to exist. The Essay concludes by briefly exploring why the emergence of these unusual constitutional views among elected lawmakers is sadly likely to influence judicial decisions in the future.

Introduction

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. [1] Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden.[2] Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution.[3] And, of course, half Congress thinks that health reform is unconstitutional.

Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution?

And yet, there is a growing movement on the American right that believes just that. Part I of this Essay begins in familiar territory: the battle over the Commerce Clause. It explains how the ubiquitous lawsuits challenging the Affordable Care Act[4] (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart—a methodology which allows judges to impose novel and extra-textual limits upon Congress’s enumerated powers.[5] As this Part makes clear, a legal theory that would strike down the ACA bears no resemblance to the much more modest limits on congressional power outlined by modern cases such as United States v. Lopez[6] and United States v. Morrison.[7] Unlike Lopez and Morrison, cases like Hammer and the two recent district court decisions striking down the ACA have no grounding in constitutional text.

Part II dives even further back into constitutional history. It explains that a growing number of prominent conservatives, including many current Members of Congress, want to revive a 230-year-old constitutional “ghoul” which would so completely eviscerate federal power that even the Lochner-era Supreme Court unanimously decided that it must remain buried. Under these conservatives’ vision of congressional power, cherished federal spending programs such as Social Security, Medicare, Medicaid, and Pell Grants would all cease to exist. The Essay concludes by briefly exploring why the emergence of these unusual constitutional views among elected lawmakers is sadly likely to influence judicial decisions in the future.

 

I.        Reviving Hammer

The many lawsuits challenging the ACA are merely the tip of a spear aimed at Congress’s larger ability to regulate the national economy. Indeed, a handful of sitting members of Congress openly admit their desire to restore overruled precedents that long ago entered the constitutional anti-canon.[8] Consider the words of Senator Lee embracing Hammer, the discredited Supreme Court decision outlawing federal child labor laws:

Congress decided it wanted to prohibit [child labor], so it passed a law—no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt [sic]. In that case, the Supreme Court acknowledged something very interesting—that, as reprehensible as child labor is, and as much as it ought to be abandoned—that’s something that has to be done by state legislators, not by Members of Congress… . This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh.[9]

Of course, few elected officials who expect to remain in office will so candidly express a desire to see federal child labor laws struck down, but a brief examination of Hammer and other cases from the Lochner era reveals striking similarities between Lochner-era Commerce Clause doctrine and the constitutional arguments now being advanced by health reform’s opponents.

 

A.      Hammer’s Folly

At the outset, it is worth noting that there is a significant factual error in Lee’s description of the statute at issue in Hammer. Congress had not passed a nationwide ban on child labor as Lee suggested. Rather, Congress had restricted the interstate transport of goods that had been manufactured through the use of child labor.[10] As explained by the Lopez Court, contemporary Commerce Clause doctrine permits Congress to “regulate the use of the channels of interstate commerce,” to “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce,” and to regulate matters that “substantially affect interstate commerce.”[11] Had the Supreme Court applied this contemporary doctrine to the law at issue in Hammer, it would have upheld the law as within Congress’s power to “regulate the use of the channels of interstate commerce,” rather than considering whether child labor itself “substantially affect[s] interstate commerce.”[12]

This distinction is important for two reasons. First, while the Commerce Clause was originally understood to encompass a broad array of economic and non-economic matters,[13]  Lochner-era Supreme Court decisions drastically reduced the legal meaning of the word “commerce” to exclude “[t]he making of goods and the mining of coal.”[14] Yet, despite this artificial limit on the commerce power, Congress’s plenary authority[15] to regulate the channels of interstate commerce—including the power to prohibit certain persons or goods from travelling in interstate commerce—remained mostly intact when Hammer was decided in 1918. For example, the Court upheld a law in Champion v. Ames[16] blocking the transportation of lottery tickets in interstate commerce.[17] It permitted Congress to ban interstate transportation of prostitutes in Hoke v. United States.[18] And Congress was allowed to restrict the sale of alcohol that traveled in interstate commerce in Clark Distilling Co. v. Western Maryland Railway.[19]

Given these precedents, Hammer should have been an easy case. Because Congress did nothing more than ban the transport of a particular object—no different than lottery tickets, prostitutes, or alcohol—from interstate commerce, the Supreme Court could have upheld the law in a one-sentence order citing Champion, Hoke, and Clark Distilling.

Instead of following these established precedents, however, the Court invented an entirely novel limit on the commerce power. Because the law at issue in Hammer “aim[ed] to standardize the ages at which children may be employed in mining and manufacturing within the States,” the Court deemed it an impermissible attempt by Congress to regulate by indirect means something that it could not regulate directly.[20] Such an aim, the Court believed, could be pursued only within the police power of the state government.

Beyond these precedents, the Hammer decision cannot be reconciled with the very first Supreme Court decision examining the commerce power. As Chief Justice Marshall explained in Gibbons v. Ogden,[21] the commerce power, “like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”[22] Because the Commerce Clause gives Congress the power to regulate the channels of interstate commerce, Congress must have the complete power to regulate those,[23] and that includes the power to ban the fruits of child labor from commerce among the several states.

The contrast between Champion, Hoke, and Clark Distilling, which all permitted Congress to regulate the channels of commerce, and Hammer, which denied Congress that power when it was turned against employers, was only one example of the Lochner-era Court’s manipulation of its own doctrines. Throughout this era, the Justices invented exceptions to longstanding legal doctrines in ways that benefitted management and hurt labor. For example, in Adair v. United States,[24] the Court effectively created a labor unions exception to Congress’s authority over the channels of commerce, striking down a law that protected railroad and shipping workers’ right to organize.[25] Likewise, in Railroad Retirement Board v. Alton Railroad Co.,[26] the Court broadened this exception to forbid Congress from providing retirement security to workers within the channels of commerce.[27]

While the Justices were busy excluding labor protections from Congress’s authority over interstate commerce, they just as willingly shaped doctrine to ensure that laws benefitting management remained intact. Recall that the Lochner-era Court believed that the commerce power did not encompass “[t]he making of goods and the mining of coal.”[28] Yet, when mine owners invoked a federal law to suppress a mining union’s cutthroat tactics, the Court decided that the commerce power allowed Congress to reach mining workers after all.[29]

Lest there be any doubt, the Lochner-era Court’s greatest sin was not that it preferred management to labor. The Court’s actions would have been no less inappropriate had the Court invented extra-constitutional limits on federal power when Congress sided with management, and created exemptions to those limits when Congress sided with labor. Rather, the greatest sin of this era was that, by inventing novel doctrines with no grounding in constitutional text or history, and then attaching multiple, equally extra-constitutional caveats to these doctrines, the Justices ceased to behave as judges who acknowledge that their discretion is bound by law. In other words, the Justices behaved as legislators. Legislators enjoy far greater discretion than judges because their actions are bound by much stronger restraints: If the voters disapprove of elected lawmakers, they can vote them out of office.[30]  Because federal judges are ultimately unaccountable to the electorate, judges who exercise unbridled discretion have lost sight of their fundamental role. Fidelity to a legal text is a judge’s only binding chain—the only restriction that ensures the essential distinction between courts and Congress.

For much of the last several decades, conservatives have highlighted this compelling need to check judicial authority in order to attack decisions they view as too disconnected from constitutional text. As Justice Scalia warns, “The main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law.”[31]

As the next Section explains, however, conservatives are now departing en masse from Scalia’s admonition that a judge’s first duty is to refrain from acting like a legislator.

 

B.      Hammer’s Revenge

The many legal challenges to the ACA rely on an interpretative method that is indistinguishable from that used in Hammer and similar cases. Like Lochner-era federalism decisions, these challenges not only depart from Chief Justice Marshall’s holding that Congress’s commerce power “acknowledges no limitations, other than are prescribed in the constitution”[32]; they also spin complex webs of exemptions and caveats to their extra-constitutional limits on federal power.

The principal assault on the ACA targets its minimum coverage provision, which requires most Americans to either carry health insurance or pay slightly higher income taxes.[33] One of the earliest published attacks on this provision, written by two of the leading attorneys challenging the law several months before the ACA even became law, suggested that it must be invalidated because the Constitution prohibits government from forcing passive individuals to take a particular action. In their original formulation, “[t]he federal government does not have the power to regulate Americans simply because they are there.”[34]

As the government explains in its briefs defending the ACA, however, Congress has enacted numerous, unquestionably constitutional laws that compel passive individuals to take action. For example, Congress may compel sex offenders to register with local officials after they move into a new jurisdiction.[35] It may conscript unwilling civilians into military service.[36] It may compel individuals to pay taxes.[37] And it may require non-custodial parents to pay child support.[38]

In fact, just after the Constitution was ratified, Congress enacted a law—admittedly pursuant to its power to “provide for organizing, arming, and disciplining, the Militia”[39]—that required individuals to purchase a specific product: The Second Militia Act of 1792, signed by President George Washington, required free men to purchase firearms and other military equipment.[40]

To distinguish those laws, ACA’s opponents refined their argument to claim that their novel interpretation that would limit laws compelling activity only applied to Congress’s commerce power. According to the original complaint in Florida v. Department of Health and Human Services:

The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, §8.[41]

It is simply untrue, however, that Congress cannot wield its commerce power to require an individual to “engage in activity.”[42] The owners of whites-only lunch counters wanted nothing more than to refrain from engaging in activity with African-American patrons, yet the Supreme Court unanimously determined that the commerce power authorized Congress to force them to conduct business against their will.[43]

To escape this precedent, the ACA’s opponents provided additional caveats to their legal rule. Despite the fact that the text of the Constitution grants Congress the power to “regulate Commerce”[44]  and not simply the power to regulate the persons presently engaged in commerce, the ACA’s opponents now argue that Congress may indeed use its commerce power to compel action, but this power only extends to individuals who, in the words of one of the two judges who struck down the law, “voluntarily placed themselves within the stream of interstate commerce.”[45]

Yet even this caveated claim runs headlong into precedent. The Supreme Court held more than a century ago in Kohl v. United States that Congress may invoke the power of eminent domain “so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.”[46] Shortly thereafter, the Court held in Luxton v. North River Bridge Co. that “in order to facilitate interstate commerce,” Congress may “condemn[] … lands for the construction and maintenance of the bridge and its approaches … .”[47]

No precedent exists suggesting that a landowner’s property is immune to condemnation simply because he did not voluntarily put it within the stream of interstate commerce; no judge has even attempted to explain why the compelled sale of land is materially distinguishable from the compelled purchase of health insurance. In striking down the minimum coverage provision earlier this year, Judge Roger Vinson, without citing any authority whatsoever, simply proclaimed that Luxton and Kohl are “obviously distinguishable,”[48] leaving readers to guess what obvious point of distinction they are missing.

The genius of the legal arguments against the ACA, as captured by Vinson’s opinion, is that they construct a rule that fingers just one provision of the United States Code—the ACA’s minimum coverage provision—as unconstitutional, while leaving constitutionally similar laws—such as the ban on whites-only lunch counters or Congress’s power to condemn land—intact. Unsurprisingly, this devolves into a largely incoherent project, as Vinson’s opinion illustrates. Any attempt to summarize its holding results in an impossibly caveated mess such as this:

Congress may not use its commerce power to require an individual to engage in a financial transaction, even though it may use its other enumerated powers to require individuals to buy products against their will,[49] but this rule only applies to people who are not already engaged in the stream of commerce,[50] and it doesn’t apply to Congress’s eminent domain power[51] for reasons that should be so obvious to you that you must not dare to ask.[52]

This process of starting with a clean legal rule and then attaching caveat after caveat to distinguish away inconvenient precedents is—to again quote Justice Scalia—delightful “intellectual fun,”[53] but it is emphatically not the role of a judge in a democracy. Scalia quite correctly warns that a judge’s discretion must be checked by more than his ability to articulate a reason, no matter how spurious, that explains why one of these things is not like the other.[54] Indeed, Vinson exceeded Scalia’s worst fears. Vinson could not even articulate a constitutionally significant reason why the ACA can be distinguished from eminent domain, and yet he still claimed the power to strike down the act of democratically elected lawmakers by fiat.

In this sense, Vinson’s opinion is even more illegitimate than Hammer. Hammer may have been wrong. It may have departed wildly from established precedent. But at least the Hammer Court attempted to explain its reasoning.

 

C.      Lopez, Morrison and the Text of the Constitution

As a final note, it is important to acknowledge that neither Hammer nor the legal arguments against the ACA bear any resemblance to limits on the commerce power laid out in modern Supreme Court cases like Lopez and Morrison. Senator Lee’s affinity for Hammer and his fellow conservatives’ near-universal belief that the ACA violates the Constitution are something entirely different from the much more modest, federalism-driven theory that the Supreme Court’s conservative majority embraced in Lopez and Morrison, striking down a prohibition of guns in school zones and a portion of the Violence Against Women Act as exceeding Congress’s commerce power.

As Chief Justice Marshall explained in Gibbons, any limits on Congress’s enumerated powers must be found within the text of the Constitution itself.[55] Two such limits can be found in the text of the Commerce Clause. The words “regulate commerce … among the several states”[56] permit Congress to regulate only “commerce,” and only such commerce that, in Chief Justice Marshall’s words, “concerns more States than one.”[57] Both Lopez and Morrison connect the scope of the commerce power to these two textual limits.

Lopez and Morrison account for the requirement that Congress actually regulate “commerce” by creating a distinction between laws regulating economic activity and those which target merely non-economic matters.[58] Under this framework, economic regulation is far more likely to fit within Congress’s commerce power than laws that merely touch on non-economic matters.[59] So child labor laws are in, while civil penalties for violence against women are out. Additionally, modern Commerce Clause doctrine casts a relatively skeptical eye upon “regulation of intrastate activity”[60]—a limit consistent with Marshall’s warning that interstate commercial regulation must “concern[] more States than one.”[61]

There is a wealth of literature criticizing these two opinions. Professors Jack Balkin and Akhil Amar, for example, both highlight historical evidence that the word “commerce” was not originally understood to encompass a distinction between economic and non-economic regulation.[62] At the very least, however, the Lopez and Morrison Courts deserve credit for announcing a legal rule that is plausibly connected to the text of the Constitution.

Hammer, by contrast, fails this test. Nothing in the word “commerce” suggests that there is a “fruits of child labor” exception to Congress’s authority to regulate the channels of commerce,[63] and a law regulating a nationwide labor practice unquestionably concerns more states than one. Likewise, Judge Vinson’s hyper-caveated activity/inactivity distinction is not only wholly inconsistent with precedent,[64] it also defies the plain constitutional text. The text of the Constitution contains no inactivity exception to Congress’s plenary authority to regulate interstate commerce.[65] A law governing the entire national health care market clearly concerns “commerce” that takes place in more than one state.

Unlike the modern federalism doctrine embraced by the Supreme Court’s conservative majority in Lopez and Morrison, the new wave of conservatism represented by the ACA lawsuits would divorce constitutional doctrine entirely from constitutional text. Senator Lee and Judge Vinson’s visions are fundamentally different from anything the Court has embraced for over three generations. And yet, as the next Part explains, shrinking federal power far more than even the Lochner-era Justices believed acceptable is only a small part of these activists’ agenda.

 

II.   Madison’s Ghoul

As the previous Part explained, Lochner-era Justices were very aggressive in carving out extra-constitutional restrictions on Congress’s regulatory authority under the Commerce Clause. Yet, even at the height of the Lochner era, the Supreme Court unanimously rejected an attempt to place crippling limits on a separate enumerated power, granting Congress authority to “provide for the … general welfare of the United States,”[66] in United States v. Butler.[67] Today, however, many Members of Congress want to relitigate this decision. Consider the words of Senator Paul, who recently explained the origin of the increasingly common belief that Congress’s constitutional spending power is so small that it can be drowned in a bathtub:

If you read [James] Madison, Madison will tell you what he thought of the Welfare Clause. He said, Yeah, there is a General Welfare Clause, but if we meant that you can do anything, why would we have listed the enumerated powers? Really the Welfare Clause is bound by the enumerated powers that we gave the federal government.[68]

In essence, Senator Paul and many of his fellow conservatives believe that Congress’s power to collect taxes and “provide for the common defense and general welfare of the United States” really only enables Congress to build post offices or fund wars, or to take actions expressly authorized by some other part of the Constitution.[69] According to this view, the spending power is not—as it is almost universally understood[70]—itself an independent enumerated power authorizing Congress to spend money.

Senator Paul’s understanding of the Spending Clause is not simply the idiosyncratic view of an outlier senator. Indeed, there is strong reason to believe that his view is shared by the majority of his caucus. In the lead-up to the 2010 midterm elections, congressional Republicans released a “Pledge to America,” which broadly outlined their plans for governing if they were to prevail that November.[71] In it, the lawmakers claimed that “lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.”[72]

This language suggests that many conservatives agree with Senator Paul that Congress is somehow exceeding its constitutional authority to spend money. But there is no support for this view in constitutional text or in Supreme Court precedent. In its very first decision to examine the reach of the Spending Clause, the Supreme Court unanimously affirmed that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution,” as Senator Paul would claim.[73] Similarly, while the text of the Constitution establishes that “the exercise of the spending power must be in pursuit of ‘the general welfare,’”[74] neither Senator Paul nor the Pledge cite examples of laws that fail to meet this criteria.[75]

Yet, while this narrow understanding of the spending power finds no support in the text of the Constitution or in the Supreme Court’s decisions, Senator Paul is correct that it does have one very famous supporter. In an 1831 missive, President James Madison claimed that the best way to read the Spending Clause is to ignore its literal meaning and impose an extra-textual limit on congressional power:

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.[76]

Senator Paul suggests that Madison’s extra-textual limit is both authoritative and binding—even if it means that programs ranging from Social Security to Medicare to Pell Grants must all cease to exist. It is a mistake to assume that Madison’s preferred construction of the Spending Clause must restrict modern-day congressional action. For one thing, modern originalists largely reject the view that an individual framer’s intentions can change constitutional meaning. As the nation’s leading originalist, Justice Scalia, explains, “I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”[77]

Indeed, Madison himself would have been dismayed by the claim that an established understanding of the Constitution must bend to his own singular views. Like Scalia, Madison rejected the notion that the framers’ personal desires can defeat the words they actually committed to text. As he explained to future President Martin Van Buren, “I am aware that the document must speak for itself, and that that intention cannot be substituted for [the intention derived through] the established rules of interpretation.”[78]

Madison even embraced an interpretative method reminiscent of the evolving theories of constitutional interpretation that are so widely decried by modern originalists. Although Congressman Madison opposed on constitutional grounds the creation of the First Bank of the United States, President Madison signed into law an act creating the Second Bank.[79] He “recognized that Congress, the President, the Supreme Court, and (most important, by failing to use their amending power) the American people had for two decades accepted” the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”[80]

What’s more, if we must, as Senator Paul suggests, be bound by the Founders’ subjective intentions, it becomes clear that Madison’s understanding of the spending power hardly reflects the consensus view among his fellow Founding Fathers. Madison’s chief antagonist in early debates about constitutional meaning was Alexander Hamilton. As the nation’s first Secretary of the Treasury, Hamilton offered an interpretation of the Spending Clause that closely resembles the modern understanding:

These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defense and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.[81]

Hamilton’s understanding of the spending power was one part of a broader, more expansive vision of congressional power that also included a robust interpretation of Congress’s power under the Necessary and Proper Clause.[82] This broader understanding of Congress’s role prevailed over Madison’s very limited one during the earliest days of the Republic. Hamilton was the chief advocate who convinced President George Washington to sign the First Bank bill over Madison’s objections.[83]

It is hardly necessary, however, to dismiss Madison’s tremendous contributions to constitutional interpretation in order to recognize why America should not relitigate a 230-year-old argument about the Spending Clause.[84] Hamilton was undoubtedly correct that his own reading of the Spending Clause is more consistent with the Constitution’s text than the reading offered by Madison—Madison himself concedes as much[85]—but Madison was also correct to warn that the nation rejects a longstanding and widely accepted constitutional interpretation at its peril.[86]

Millions of Americans depend upon programs like Social Security, Medicare, and federal student loans, and America has grown into the wealthiest and most prosperous nation ever to exist in the years since Congress enacted these programs. Throughout this golden age, not one Justice has questioned what Justice Scalia recently told a gathering of Members of Congress: “It’s up to Congress how you want to appropriate, basically.”[87]

 

Conclusion

This Essay quite consciously contrasts the emerging assault on congressional power with Justice Scalia’s views in order to emphasize how wildly people like Senator Paul or Judge Vinson have departed from even the conservative mainstream that existed before President Obama took office. Yet the fact that few sitting judges are prepared to return America to the constitutional dark ages today[88] does not mean that the Supreme Court will not be eager to do so tomorrow.

Just one year ago, one of the nation’s leading conservative constitutional scholars promised to “eat a hat which I bought in Australia last month made of kangaroo skin” if the courts struck down the ACA.[89] Today, conservative lawmakers almost unanimously agree that the law is unconstitutional. It is difficult to imagine any of these lawmakers appointing a Justice to the Supreme Court who disagrees with them on the constitutionality of the ACA, should such a lawmaker ever be elected to the White House. Likewise, the GOP Pledge to America’s break with long-established Spending Clause doctrine strongly suggests that a broad array of elected conservatives are eager to impose new constitutional limits on Congress’s power to spend money. This desire will also factor into future debates over judicial appointments.

Four decades ago, a lopsided 7-2 majority recognized a robust constitutional right to reproductive freedom.[90] Today, a judge or elected official’s position on Roe is almost a perfect proxy for their political ideology with respect to any number of contentious issues. This happened in no small part because conservative politicians lined up to appoint and confirm anti-Roe judges with the same near-unanimity with which they are now lining up to trumpet their passion for long dead federalism doctrines. If a radically antiquated view of the Commerce Clause takes on similar political significance and organizing power to conservatives, they will be a long way toward rolling back much of the twentieth century—and eradicating much of American government as we know it.

***

*        Policy Analyst, Center for American Progress. The author is grateful for helpful comments from David Fontana, Kent Greenfield, Simon Lazarus, Sonja Ralston, and Adam Winkler, and for editorial assistance from Ali Frick and Chris Suarez.

[1].       Ian Millhiser, Coburn Channels Failed Tenther Candidates Who Claim Department of Education Is Unconstitutional, ThinkProgress (Dec. 7, 2010, 7:30 PM), http://thinkprogress.org/2010/12/07/coburn-education-dpmt/.

[2].       Ezra Klein, Rand Paul May Not Be a Racist, but He Is an Extremist, Ezra Klein (May 20, 2010, 10:16 AM), http://www.voices.washingtonpost.com/ezra-klein/2010/05/rand_paul_may_no….

[3].       Ian Millhiser, Mike Lee Suggests FEMA, Federal Poverty And Food Safety Programs Are All Unconstitutional, ThinkProgress (Jan. 19, 2011, 4:08 PM), http://thinkprogress.org/2011/01/19/mike-lees-katrina/.

[4].       Affordable Care Act § 1501, 26 U.S.C.A. § 5000A(a) (West 2010).

[5].       247 U.S. 251 (1918), available at http://www.law.cornell.edu/supct/html/historics/ USSC_CR_0247_0251_ZO.html.

[6].       514 U.S. 549 (1995), available at http://www.law.cornell.edu/supct/html/93-1260.ZO.html.

[7].       529 U.S. 598 (2000), available at http://www.law.cornell.edu/supct/html/historics/ USSC_CR_0529_0598_ZO.html.

[8].       Hammer is emblematic of this group of cases. See United States v. Darby, 312 U.S. 100, 116-17 (1941), available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0312_0100_ZO.html (“The conclusion is inescapable that Hammer v. Dagenhart, [sic] was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted.”).

[9].       Senatorial candidate Mike Lee, Remarks in Draper, Utah (Jan. 4, 2010) (alteration in original), available at http://thinkprogress.org/2011/01/14/lee-child-labor.

[10].     Hammer v. Dagenhart, 247 U.S. 251, 268 (1918).

[11].     United States v. Lopez, 514 U.S. 549, 558-59 (1995).

[12].     Id.

[13].     See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90 (1824),
available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=22&invol=1 (“Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”); Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 15-16 (2010) (explaining that “intercourse” includes “interactions, exchanges, interrelated activities, and movements back and forth, including, for example, travel, social connection, or conversation”).

[14].     Hammer, 247 U.S. at 272.

[15].     See Gibbons, 22 U.S. (9 Wheat.) at 197 (“[T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government … .”).

[16].      188 U.S. 321 (1903), available at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=188&invol=321.

[17].     See id. at 357 (“As a State may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the ‘widespread pestilence of lotteries’ and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another.”).

[18].     227 U.S. 308, 322 (1913), available at http://supreme.justia.com/us/227/308/case.html (“[S]urely if the facility of interstate transportation can be taken away from the demoralization of lotteries … the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls.”).

[19].     Clark Distilling Co. v. W. Md. Ry. Co., 242 U.S. 311, 327 (1917), available at http://supreme.justia.com/us/242/311/case.html (“In view of the conceded power on the part of Congress to prohibit the movement of intoxicants in interstate commerce, we cannot admit that because it did not exert its authority to the full limit … Congress exceeded its authority to regulate.”).

[20].     Hammer v. Dagenhart, 247 U.S. 251, 272 (1918).

[21].     22 U.S. (9 Wheat.) 1 (1824).

[22].     Id. at 196.

[23].     United States v. Darby, 312 U.S. 100, 114-17 (1941).

[24].     208 U.S. 161 (1908), available at http://supreme.justia.com/us/208/161/case.html.

[25].     See id. at 178 (“[W]hat possible legal or logical connection is there between an employe’s [sic] membership in a labor organization and the carrying on of interstate commerce?”).

[26].     295 U.S. 330 (1935), available at http://supreme.justia.com/us/295/330/.

[27].     Id. at 374. Disturbingly, Alton was in some ways a more moderate opinion than a recent district court decision striking down the ACA. While Alton expressly disclaimed any suggestion that a law is more likely to be unconstitutional if it is in some way unique, see id. at 346 (“The fact that the compulsory scheme is novel is, of course, no evidence of unconstitutionality.”), Judge Roger Vinson suggested that the opposite is true, see Florida v. U.S. HHS, No. 3:10-cv-91-RV/EMT, 2011 U.S. Dist. LEXIS 8822, at *72-73 (Jan. 31, 2011) (“[A]n ‘absence of power’ might reasonably be inferred where—as here—‘earlier Congresses avoided use of this highly attractive power.’” (quoting Printz v. United States, 521 U.S. 898, 905, 908 (1997))).

[28].     Hammer v. Dagenhart, 247 U.S. 251, 272 (1918).

[29].     United Mine Workers v. Coronado Coal, 268 U.S. 295, 310 (1925).

[30].     Indeed, Chief Justice Marshall recognized that the electorate’s power over the elected is the most important shield against overuse of Congress’s commerce power. See Gibbons v. Ogden 22 U.S. (9 Wheat.) 1, 197 (1824) (“The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.”).

[31].     Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989).

[32].     Gibbons, 22 U.S. (9 Wheat.) at 196.

[33].     Affordable Care Act §1501, 26 U.S.C.A. § 5000A(a) (West 2010).

[34].     David B. Rivkin, Jr. & Lee A Casey, Illegal Health Reform, Wash. Post (Aug. 22, 2009), available at http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR200908….

[35].     United States v. Ambert, 561 F.3d 1202, 1206 (11th Cir. 2009).

[36].     See Selective Draft Law Cases, 245 U.S. 366, 390 (1918).

[37].     See United States v. Hart, 701 F.2d 749, 750 (8th Cir. 1983) (deeming an individual’s claim that he was immune from income taxation to be frivolous).

[38].     United States v. Williams, 121 F.3d 615, 619 (11th Cir. 1997).

[39].     U.S. Const. art. I, § 8, cl. 16.

[40].     Second Militia Act of 1792, ch. 33, § 1, 1 Stat. 271, 271 (1848).

[41].     Complaint at 19, Florida v. U.S. Dep’t Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 U.S. Dist. LEXIS 8822 (Jan. 31, 2011), available at http://myfloridalegal.com/webfiles.nsf/WF/MRAY-83TKWB/$file//HealthCareReformLawsuit.pdf.

[42].     Id.

[43].     Katzenbach v. McClung, 379 U.S. 294, 304-05 (1964), available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0379_0294_ZO.html; see also Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964),
available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0379_0241_ZS.html (holding that the Constitution allowed Congress to require private hotel operators to serve black patrons).

[44].     U.S. Const., art I, § 8, cl. 3.

[45].     Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 779 (E.D. Va. 2010), available at http://scholar.google.com/scholar_case?case=5603040913273999931&hl =en&as_sdt=2&as_vis=1&oi=scholarr.

[46].     Kohl v. United States, 91 U.S. 367, 372 (1875), available at http://supreme.justia.com/us/91/367/case.html.

[47].     Luxton v. North River Bridge Co., 153 U.S. 525, 534 (1894), available at http://supreme.justia.com/us/153/525/case.html.

[48].     Florida v. U.S. Dep’t of Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 U.S. Dist. LEXIS 8822, at *73 (N.D. Fla. Jan. 31, 2011).

[49].     Second Militia Act of 1792, ch. 33, § 1, 1 Stat. 271, 271 (1848).

[50].     See Katzenbach v. McClung, 379 U.S. 294, 304-05 (1964).

[51].     See Luxton, 153 U.S. at 534.

[52].     Florida, 2011 U.S. Dist. LEXIS 8822 at *73.

[53].     Antonin Scalia, A Matter of Interpretation 7 (1998).

[54].     See id. at 9.

[55].     See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824) (holding that Congress’s enumerated powers “acknowledge[] no limitations, other than are prescribed in the constitution”).

[56].     U.S. Const. art I., § 8, cl. 3.

[57].     Gibbons, 22 U.S. (9 Wheat.) at 194.

[58].     See United States v. Morrison, 529 U.S. 578, 611 (2000) (“Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.”).

[59].     See id. at 60 (“‘Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.’” (quoting United States v. Lopez, 514 U.S. 549, 560 (1995))).

[60].     Id. at 613.

[61].     Gibbons, 22 U.S. (9 Wheat.) at 194.

[62].     See Balkin, supra note 13, at 5 (“In the eighteenth century, however, ‘commerce’ did not have such narrowly economic connotations. Instead, ‘commerce’ meant ‘intercourse’ and it had a strongly social connotations [sic].”); Akhil Reed Amar, America’s Constitution: A Biography 107-08 (2005) (arguing that the Commerce Clause empowers Congress to regulate “all forms of intercourse in the affairs of life, whether or not narrowly economic … [I]f a given problem genuinely spilled across state or national lines, Congress could act”).

[63].     See supra note 23 and accompanying text.

[64].     Gibbons, 22 U.S. (9 Wheat.) at 196 (holding that the commerce power “is complete in itself, [and] may be exercised to its utmost extent”); see Section I.B; see also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” (emphasis added)).

[65].     Gibbons, 22 U.S. (9 Wheat.) at 197.

[66].     U.S. Const. art. I, § 8, cl. 1.

[67].     297 U.S. 1, 66 (1936), available at http://supreme.justia.com/us/297/1/case.html (concluding that Congress’s spending power “is not limited by the direct grants of legislative power found in the Constitution”).

[68].     senatormikelee, We The Interns clip 2 - Senators Rand Paul and MIke [Sic] Lee Discuss Their Legislative Ambitions, YouTube, Mar. 11, 2011, http://www.youtube.com/watch?v=d7LI_76oawk&feature=relmfu.

[69].     See U.S. Const. art. I, § 8.

[70].     See, e.g., Butler, 297 U.S. at 66 (holding that the taxing and spending power’s “confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress”).

[71].     Republican Majority in Cong., A Pledge to America (2010), available at http://pledge.gop.gov/resources/library/documents/pledge/a-pledge-to-ame… .pdf.

[72].     Id. at 33.

[73].     United States v. Butler, 297 U.S. 1, 66 (1936); see also id. at 87 (Stone, J., dissenting) (explaining that the spending power stands “on a parity with the other powers specifically granted”).

[74].     South Dakota v. Dole, 483 U.S. 203, 207 (1987), available at http://supreme.justia.com/us/483/203/case.html.

[75].     Indeed, the question of what kind of government spending fails to advance the “general welfare” is sufficiently indeterminate that the Supreme Court views itself as largely incompetent to make such determinations. See id. (“In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.”).

[76].     Letter from James Madison to James Robertson (Apr. 20, 1831), available at http://en.wikisource.org/wiki/James_Madison_letter_to_James_Robertson; see also Butler, 297 U.S. at 65 (citing Madison’s belief that the Spending Clause “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section”).

[77].     Antonin Scalia, Address at the Catholic University of America (Oct. 18, 1996), available at http://web.archive.org/web/19980119172058/www.courttv.com/library/rights….

[78].     H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 936 (1985) (quoting Letter from James Madison to Martin Van Buren (July 5, 1830), reprinted in 4 Letters and Other Writings of James Madison 87, 87 (alteration in original)).

[79].     Act of Apr. 10, 1816, ch. 44, 3 Stat. 266 (1850).

[80].     Powell, supra note 78, at 940 (quoting letter from James Madison to Marquis de LaFayette (Nov. 1826), reprinted in 3 Letters and Other Writings of James Madison 538, 542 (1865)).

[81].     Alexander Hamilton, Alexander Hamilton’s Final Version of the Report on the Subject of Manufactures, in 10 The Papers of Alexander Hamilton December 1971 - January 1792, at 230, 303 (Harold C. Syrett ed., 1966).

[82].     See Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act To Establish a Bank, in 8 The Papers of Alexander Hamilton February - July 1791, at 97, 102-107 (Harold C. Syrett ed., 1966).

[83].     Id.

[84].     Compare Letter from James Madison to James Robertson, supra note 76, with Hamilton, supra note 81.

[85].     See supra note 76 and accompanying text.

[86].     See supra note 79 and accompanying text.

[87].     Ian Millhiser, Scalia Slaps Down GOP’s Tentherism, ThinkProgress (Jan. 25, 2011, 1:41 PM), http://thinkprogress.org/2011/01/25/scalia-tentherism/.

[88].     See United States v. Lopez, 514 U.S. 549, 592 (1995) (Thomas, J., dissenting) (suggesting that Congress may not regulate “[a]griculture and manufacture”).

[89].     See, e.g., Igor Volsky, Reagan’s Solicitor General Promises To ‘Eat A Hat Made Of Kangaroo Skin’ If Courts Repeal Health Law, Wonk Room (Apr. 15, 2010, 4:40 PM), http://wonkroom.thinkprogress.org/2010/04/15/fried-unconstitutional/.

[90].     Roe v. Wade, 410 U.S. 133 (1973).

Ian Millhiser is a Policy Analyst at the Center for American Progress. The author is grateful for helpful comments from David Fontana, Kent Greenfield, Simon Lazarus, Sonja Ralston, and Adam Winkler, and for editorial assistance from Ali Frick and Chris Suarez.

Cite this piece: Ian Millhiser,

Worse Than Lochner

, Yale L. & Pol'y Rev. Inter Alia (Nov. 15, 2011, 4:45 PM), http://ylpr.yale.edu/inter_alia/worse-lochner.