Senate Judiciary Committee Republicans latched on to one more issue last week [July 20] to use against Supreme Court nominee Elena Kagan: the Constitution’s Commerce Clause. But the issue puts Republicans in the contradictory position of begging Kagan, if confirmed, to be a judicial activist and limit the power of Congress to exercise one of the most important of the enumerated powers written into the Constitution 200 years ago.
In the hearing and in written response to follow-up questions, Kagan correctly stated current Supreme Court case law regarding Congress’ power to regulate interstate and foreign commerce. “The Commerce Clause has been understood to give Congress wide authority in this area, that the general view has been that regulations affecting interstate commerce primarily are the prerogative of Congress and not of the courts, that courts ought to defer,” she told Arizona’s John Kyl on the last day of the hearing.
As she explained in her written response, decisions by the Rehnquist Court in the 1990s limit Congress’ power to use the Commerce Clause to regulate non-economic activity that has no substantial effect on interstate commerce. And she noted that another Rehnquist Court decision limits Congress’ power to pass laws enforcing the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Those qualifications were not enough to satisfy Alabama’s Jeff Sessions, the committee’s ranking Republican. As he wrote in an op-ed in USA Today on the eve of the committee’s vote, “Ms. Kagan was unable to identify any constitutional limits on the government's power to control people's economic decisions.”
The question arises in the specific context of President Obama’s hard-fought victory in winning congressional approval of a landmark health insurance reform. No Republican voted for the final bill, and the ink was barely dry on the law when attorneys general in red states filed constitutional challenges.
The challengers are claiming that the health insurance mandate, the linchpin of the plan, exceeds Congress’ power under the Commerce Clause. They also claim that the law improperly interferes with states’ rights under the Tenth Amendment. Most but not all legal scholars give the challenges little chance of succeeding.
Historically, the Supreme Court indeed took a narrower view of Congress’ powers under the Commerce Clause. In the late 19th and early 20th centuries the court construed the word “commerce” narrowly to exclude manufacturing. On that basis, for example, the court struck down Congress’ first attempt to prohibit child labor. Later, during the New Deal, the court again relied on a restrictive definition of commerce to strike down President Franklin D. Roosevelt’s National Recovery Administration and his coal-industry rescue plan.
The court’s decisions were out of touch with economic reality and public opinion. Even before FDR’s ill-conceived “court-packing” plan, one of the justices, Owen J. Roberts, began to have doubts about the out-of-date doctrine. Then in May 1937 he provided the famous “switch in time that saved nine” to uphold the National Labor Relations Act under a broader definition of Congress’ power to regulate interstate commerce.
Ever since, the court has understood Congress’ Commerce Power over economic activities to be up to Congress, not the courts, to decide, just as Kagan said. Indeed, the court in 2005 upheld Congress’ power to go so far as to prohibit non-personal growing of marijuana for medicinal purposes because of the impact on the illegal market for marijuana. Granted three conservatives dissented, but significantly, Justice Antonin Scalia voted with the majority.
The Roberts Court this year gave no indication of taking a narrower view of Congress’ powers. In United States v. Comstock the court upheld Congress’ power to authorize civil commitment of dangerous mentally ill sexual predators after their federal prison terms had expired. The case turned on the meaning of the Necessary and Proper Clause, not the Commerce Clause, but the 7-2 decision found no reason to limit Congress’ power to deal in practical terms with a practical problem. Significantly, Chief Justice John G. Roberts Jr. joined with the majority.
The health care suit will take two years or more to reach the court. But, anticipating the Supreme Court showdown, Judiciary Committee Republicans tried to use Kagan’s confirmation hearing to establish grounds for requiring her to recuse herself from the eventual case. Kagan had already volunteered the standard assurance that she would recuse herself from any case in which she had participated or taken a significant role as solicitor general. So Republicans questioned her during the hearing and again in the post-hearing interrogatories about what role she had played in regard to the legislation. Kagan said she had given no formal opinion about its constitutionality and could recall attending only one meeting where the subject was mentioned.
Sessions and other Republicans cited Kagan’s view of Congress’ Commerce Power as one of the reasons for voting against her almost in the same breath as they warned that she would be a “judicial activist” if confirmed. Judicial activism, of course, is in the eyes of the beholder, but Republicans might rightly be expected not to be so blatantly hypocritical in throwing the charge. Regardless, Republicans have a losing hand. By this week’s end, the Senate will have confirmed Kagan, and she will be on the bench when the court convenes in October.