Summary

Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use.

~ Chief Justice John Marshall in Gibbons v. Ogden

As this quote from Chief Justice John Marshall in the Supreme Court’s first major opinion interpreting the Constitution’s Commerce Clause makes clear, the fundamental issue of the scope of the federal government’s power has been debated since the founding of our Republic. It also shows that, throughout our nation’s history, opponents of broad federal power have relied on a narrow construction of the Constitution in attempts to impose limits upon Congress’s powers under the Commerce Clause and the Necessary and Proper Clause — threatening, perhaps, to “explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use.”

The latest skirmish in this debate is the constitutional challenge to the Patient Protection and Affordable Care Act (ACA), particularly its minimum coverage provision, which requires Americans who can afford it to either purchase a minimum level of health insurance or pay a penalty. To the “powerful and ingenious minds” of the law’s challengers, the ACA is a novel expansion of federal power that goes beyond what was contemplated or permitted by the Founders. To others, the healthcare mandate is a regulation of commerce that is clearly constitutional under the text of the Commerce and Necessary and Proper Clauses and Supreme Court interpretations of these texts in early decisions such as Gibbons and McCulloch v. Maryland. Although one conservative commentator initially predicted that “there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power,” the lower courts have split on this question, and now some are predicting that an ideologically divided Supreme Court will strike the mandate down.

The challengers to the mandate rely heavily upon a series of ideologically‐divided rulings issued over the past 15 years in which the Court’s conservative bloc articulated new limits on Congress’s power under the Commerce Clause. Most significantly, in United States v. Lopez and United States v. Morrison, the Court invalidated the Gun Free School Zones Act and part of the Violence Against Women Act, holding that these federal laws did not regulate activities sufficiently tied to interstate commerce.

While these cases form the basis for the attacks on the Affordable Care Act, two more recent cases justify the prediction that the health care challenges will be easily disposed of by the Court. In Gonzales v. Raich, Justices Antonin Scalia and Anthony Kennedy joined their liberal colleagues to uphold federal regulation of medicinal marijuana, even if grown in a backyard for personal consumption, in accordance with local law. In United States v. Comstock, Chief Justice John Roberts and Justices Kennedy and Samuel Alito agreed with the Court’s liberal wing in holding that the Necessary and Proper Clause permitted Congress to enact a federal law allowing the government to hold mentally ill, sexually dangerous federal prisoners beyond the date they would otherwise be released from prison. The question left by Raich and Comstock is whether these cases are accurate reflections or refinements of the views of these conservative Justices about the scope of federal powers, or more a reflection of the conservative policy goals – regulating drugs and sexually dangerous criminals – at issue in these cases.

What is clear, however, is that with a challenge to the most important legislative achievement of the Obama presidency pending before the Supreme Court, the Constitution’s Commerce Clause and its Necessary and Proper Clause are at a crossroads.