Overruled (27 page)

“When we saw that case coming up from the Fifth Circuit, you can imagine how excited we were,” recalled Roger Pilon, the founder and director of the Cato Institute's Center for Constitutional Studies. This was not your run-of-the-mill gun case, he realized, it was an opportunity to advance the libertarian agenda by curbing federal power.
For years, Pilon and his colleagues had been advocating the revival of a legal principle known as the “doctrine of enumerated powers.” Put simply, it's the idea that the government may only exercise those powers specifically granted to it by the text of the Constitution. And even then, the government must not stray too far from the text.

“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!'”
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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.”
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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,”
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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.”
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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.”
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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.”
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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.”
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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.”
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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 with it, just trying to regulate interstate activity the way they were before, we wouldn't be able to stop them.”
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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.”
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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.”
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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.”
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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.”
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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.”
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