Monday, July 26, 2010

GOP Wants an Activist Kagan on Congress' Commerce Powers

      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.


  1. Republicans, in light of the position they are taking on the health care law, might be asking Kagan to be less than deferential to precedent they view as constitutionally infirm, but that doesn't mean they are (or must be) asking her to be an "activist" nor does it betray any internal inconsistency in their position.

    Indeed, to the extent that "Judicial activism, of course, is in the eyes of the beholder," your criticism must be exclusively one of inconsistency or hypocrisy. But the Republican or conservative view on judicial activism, and the arguments advanced against the constitutionality of the health care law, seem to me to be perfectly in harmony with one another.

    I understand the conservative/Republican views to be accurately summarized as follows: (1) Judicial activism is the invalidation of a democratically enacted law on constitutional grounds where the constitution provides no such grounds for invalidation; (2) the Constitution's commerce clause grants Congress the power to regulate only the objects and instrumentalities of commerce, in this case "among the several States"; (3) Supreme Court precedent, which has embraced a "substantial effects" test for determining the scope of the powers granted by the clause either (a) is constitutionally incorrect, (b) must be construed narrowly in order to be constitutionally correct, or (c) both (in the event principles of stare decisis compel one to refrain from a wholesale reversal of the allegedly infirm precedent to return to an objects and instrumentalities interpretation); (4) the health care law cannot be sustained under either the "objects and instrumentalities" interpretation or the narrowly construed "substantial effects" interpretation of the commerce clause.

    Given these premises, the conclusion that Republicans are put 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" doesn't hold water. This is true partciularly in light of their invocation of the 10th Amendment as part of the challenge to the health care law, which reveals a healthy respect for the textual distinction between the States' plenary powers and the federal government's constitutionally enumerated, and thereby limited, powers.

  2. In short, the Republicans don't agree with the major premise of your argument, namely, that the Constitution grants Congress the power to legislate as it has on health care in the first place. So long as they do not share your view in that regard, the charge of hypocrisy is misplaced...

    ...unless your argument from prior decisions of the Court carry the day. Unfortunately, the arguments are unpersuasive. First, you fail to distinguish between the so-called conservative members of the Court and the Republican members of the judiciary committee, such that any act or view of a conservative member of the Court is imputed to the Senators. Not only is this not necessarily the case, but you yourself observe that even in the Raich (marijuana) case, "three conservatives dissented." It would seem just as reasonable to conclude that the Senators share the view of Thomas, Roberts and Alito with respect to that case - unless we know additional facts, e.g., that they voted for the law in question or expressed agreement with Scalia.

    Second, even if the Republican Senators share the view of Scalia in the Raich case, that only means that they believe that the narrow "substantial effects" test is the proper constitutional measure and that the marijuana law met it. In order to demonstrate their hypocrisy, you would need to show that under that very rubric, the health care law has an at least equally substantial effect on interstate commerce as did the marijuana law.

    Finally, and perhaps most tellingly, your claim that Comstock further illustrates their hypocrisy not only suffers from the same flaws as the Raich example, but plants the seeds of its own demise. You assert that although "[t]he case turned on the meaning of the Necessary and Proper Clause, not the Commerce Clause, [ ] the 7-2 decision found no reason to limit Congress’ power to deal in practical terms with a practical problem." This, of course, would be persuasive, if the Constitution actually had a general grant of authority to "deal in practical terms with a practical problem"--or, for purposes of this article, that you have evidence that that is the Republican view of the scope of power that the commerce clause confers--but that simply isn't the case.

    Even more, that you gloss over the fact that a completely different clause was being interpreted in the first place, i.e., an entirely separate and distinct grant of congressional power, reveals the absurdity of your example. To believe that clause B grants Congress power to do X, says nothing about one's view as to whether clause A grants Congress power to do Y. Indeed, it is only by employing a classic activist tactic--construing a specific provision or text at the highest level of abstraction possible so that its meaning is as flexible and redefinable as possible--that your argument even has a claim to coherence. (The commerce clause and the necessary and proper clause aren't really two distinct constitutonal provisions - they're just really two ways of saying that Congress has the power "to deal in practical terms with a practical problem."

    As a result, while you may take exception to the Republican argument that the health care law is constitutionally problematic, it seems to me that the accusation of hypocrisy widely misses the mark. Republicans, so far as I can tell, neither share your view (or even necessarily that of Justice Scalia) regarding the breadth of commerce clause, nor do they share your perspective on the meaning of "judicial activism" itself. It is at those points of departure that your arguments should be directed. An unsupported and unreasoned charge of hypocrisy, however, only makes you--not the Republican Senators--look bad.