The Roberts Court: The Struggle for the Constitution (41 page)

In November of that year, McCollum, armed with his staff’s research, went to the Cornhusker group of attorneys general and proposed a lawsuit challenging the health care act if it became law. And McCollum wanted to take the lead. Most of the group said they would join in such a lawsuit. McCollum then began approaching other state attorneys general around the country.

“Most of the time was spent on trying to corral as many attorneys general as we could,” he recalled. “I actually thought we were going to get several Democrats at that point. We ended up getting one who later switched to Republican. I think I know the political pressure they felt.” He also brought Rivkin and Casey on board to help with the drafting of a lawsuit.

Rivkin has a “personal passion” for constitutional issues, said McCollum. Rivkin and Casey, friends since 1987, have written about or been involved in numerous constitutional cases and issues since their days in the Reagan and Bush administrations. They confess to “eating, drinking, and breathing” those issues whenever they are not handling their regular law practices. Rivkin, at first glance, appears to be something of a dandy, or at least eccentric, dressed in a purple-striped shirt, purple tie, red suspenders, and purple and green socks. His law office is crammed with antiques on his desk, shelves, and table; an antique rug warms the floor and old maps cover the walls. A chiming clock makes its presence known intermittently. However, he is neither dandy nor fool.

Accepting McCollum’s invitation, he and Casey tackled the first, immediate hurdle to bringing a lawsuit in federal court—what is known as standing to sue. A person filing a federal lawsuit must show that he or
she has suffered an injury that the court can remedy in order to get into the front door. Although the state attorneys general could argue that the health care law injured them in their sovereign capacities as states, Rivkin and Casey wanted to be sure they had more than that to fight back an inevitable standing challenge by the federal government which, if successful, would kick them out of court.

And so they went hunting for individuals who could claim to be injured by the mandate to buy health insurance, and they also wanted to bring in some organization that could claim standing because its members would be injured by the mandate.

“We had to look for the best possible plaintiffs,” recalled Rivkin. “You need to find people genuinely injured, but you also need presentable people, people who look okay and, if need be, can go through a deposition. And then you need an association with sufficient language in its articles of incorporation and bylaws so [the lawsuit] will be germane to its purposes. This is not exciting, but it’s necessary.”
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They found their plaintiffs in two private individuals: Mary Brown, who owned a small auto repair business in Florida; and Kaj Ahlburg, a retired New York investment banker living in Washington State, as well as the National Federation of Independent Business, a small business association.

The question of where to file their lawsuit when the time came also topped their list of strategic issues. They looked for which federal circuit offered the best opportunity for success not only at the district—trial—court level, but also at the appellate level because someone was going to lose and file an appeal.

“There was a considerable amount of thinking on the front end about this,” recalled Rivkin. “But the Eleventh Circuit was really the one.” That circuit includes federal courts in Alabama, Florida, and Georgia, and its court of appeals is considered one of the most conservative courts in the country.

Because McCollum was the lead state attorney general, Florida became the venue; and the most logical district court was just down the
street from his office in Tallahassee. However, logic does not always dictate legal strategy. The lawyers, instead, decided that the court in Pensacola—nearly two hundred miles away—would be their starting point.

“You look at the bench. You look at their opinions and the caseload,” explained Rivkin. “You go to the southern district [of Florida] and they’ve got all the drugs and thug cases and you get stuck there for a long time. And the idea was to punch through quickly.” Casey agreed, saying, “Pensacola did not have that caseload and it would be done quickly.” And, perhaps most important, they liked the bench: the three federal judges in Pensacola, they noted, were Reagan-Bush appointees.

“So much of the time between the moment this all got started and the time we filed the lawsuit was really developing strategy and trying to build the appropriate parties to the lawsuit,” said McCollum. “From day one, we always had the Supreme Court in the back of our minds. We didn’t want to get waylaid and some other case gets to the Supreme Court first.”

As McCollum increased his efforts to bring more state attorneys general to the lawsuit and held weekly conference calls with those already committed to it, two other key events occurred to support the coming legal challenges. The Tea Party movement, a loosely formed coalition of conservatives and libertarians angry over bank bailouts, rising budget deficits, stimulus spending, and big government in general, emerged seemingly overnight. It successfully backed Republican Scott Brown in the Massachusetts U.S. Senate primary race that November, and his subsequent election dramatically changed the vote calculus for health care legislation in the Senate. Brown won the seat of the late Senator Ted Kennedy, which reduced the Democratic majority in the Senate by one critical vote. Defeating the president’s health care proposal soon became the Tea Party’s primary goal.
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The second key event occurred early that December. The Heritage Foundation, the conservative think tank that in 1989 proposed a health insurance individual mandate but later changed its position, published
a “Legal Memorandum” on why the mandate was “unprecedented and unconstitutional.” The article was written by three lawyers: Randy Barnett, the libertarian law professor at Georgetown University Law Center; Nathaniel Stewart of the White & Case law firm; and Todd Gaziano of the Heritage Foundation.
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Barnett, who would rise to national prominence with his dogged campaign against the health care law, and the two other lawyers carefully laid out their arguments, complete with “talking points,” on why the mandate exceeded Congress’s powers to regulate interstate commerce and to tax for the general welfare. They created what would become the core argument against the mandate—an “activity-inactivity” distinction: Congress may regulate economic activity pursuant to its lawmaking powers under the Constitution’s commerce clause, but an individual’s decision to forgo health insurance was both inactivity and non-economic.

Barnett and other academics who supported his legal theory kept up a steady stream of posts on widely read and influential Internet legal blogs, primarily the conservative Volokh blog, in which they attacked the constitutional basis for the health care proposal before and after it became law. They faced pushback from liberal and progressive blogs, such as Balkinization and the American Constitution Society. The debate soon spread to other blogs and the arguments were picked up by journalists in their coverage of the health care legislation, and later by members of Congress and even by the federal courts ruling on the legal challenges to the law.

Barnett, who also was among those advocating the individual right view on guns and the Second Amendment in law review articles and elsewhere at least a decade before, became the public face of the expert opposition to the health care law, appearing on news shows, talking on radio, and engaging in debates. He frequently faced off with Walter Dellinger, acting solicitor general in the Clinton administration and the lawyer who defended the District of Columbia’s handgun ban in the Roberts Court’s landmark Second Amendment case. Dellinger, a constitutional
law scholar, entered the fray on behalf of the Obama White House and did a better job defending and explaining the health care law to the public than anyone in the White House itself.

And yet, until the federal courts began ruling in the health care lawsuits, the arguments by Barnett, Rivkin, and McCollum were considered outside the mainstream or “off the wall,” not just by liberals and progressives supporting the law but even by a number of conservative scholars and Republican lawmakers. Former Reagan solicitor general Charles Fried of Harvard Law School, for example, famously promised in an appearance on Fox News to eat his Kangaroo leather hat on camera if the Supreme Court struck down the law, so certain was he of its constitutionality.

“As this developed, we faced considerable resistance by colleagues on the right who again had this mind-set that, well, if it involves economics, then Congress can do it,” said Casey. “You found that on both sides of the aisle [in Congress].” His partner, Rivkin, agreed, adding, “Nobody took it seriously. We got slammed and ridiculed a bit.”

And there were good reasons for skepticism of their arguments, reasons related to the Supreme Court and its history of interpreting the commerce clause. No Supreme Court in history had ever recognized an “activity-inactivity” distinction in analyzing Congress’s power under the commerce clause.

The meaning and scope of the commerce clause, which is inextricably linked to the development of the nation’s economy and its ability to address problems national in scope, has been debated for more than a century.

The Articles of Confederation, the precursor to the Constitution, left the regulation of commerce to the states, and that was not working well for the fledgling nation. The states were acting to protect and enhance their own economies in ways that often thwarted the national interest. The Framers’ response to the problem was the commerce clause which, as James Madison, the father of the Constitution, explained in an 1829 letter “grew out of the abuse of the power by the importing States in taxing
the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”
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The Constitution creates a national government of limited powers. Congress’s powers are enumerated in Article I, Section 8. In clause 3 of Section 8, the so-called commerce clause, Congress is given the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Congress is also given the power “To make all Laws which shall be necessary and proper for carrying into Execution” the commerce power—the so-called necessary and proper clause, also in Article I, Section 8, as clause 18. Over time, the Supreme Court has interpreted those two clauses to allow Congress to regulate: the channels of interstate commerce, such as roads and waterways; the instrumentalities of interstate commerce, for example, cars and ships, as well as persons or things in it; and other economic activities that “substantially affect” interstate commerce. Justice Thomas, even before the health care case came to the Court, had never accepted that third category, arguing that it is inconsistent with original understanding of Congress’s powers.

The Supreme Court’s commerce clause rulings, like its campaign finance decisions, have swung like a pendulum over time, from granting Congress wide latitude to deal with the needs of the national government to restricting its authority and back again. The case that set the stage for broad congressional power over national issues was the justices’ 1824 ruling in
Gibbons v. Ogden
, a dispute involving rival steamboat ferries on the Hudson River. Chief Justice John Marshall, known as the “Great Chief Justice” and someone whom Chief Justice John Roberts Jr. has sometimes embraced as a model, interpreted the commerce clause for the first time, giving meaning to its words. He also read Congress’s commerce clause power as broadly as possible, writing: “It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This 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.”

By the end of the nineteenth century, however, the pendulum had swung to the other extreme and the Court began limiting Congress’s authority, a period that became known as the Lochner era and that endured for nearly forty years. That era was marked by the Court’s protection of economic rights, rights of contract and property. The justices wielded a heavy ax, striking down state and federal regulations of working conditions. The era was named for the now widely discredited 1905 decision in
Lochner v. New York
. In that case, the justices invalidated the New York Bakeshop Act, which prohibited bakers from working more than ten hours per day or sixty hours per week, because the act interfered with the right of contract between employer and employee. And in 1918 in
Hammer v. Dagenhardt
, the Court struck down a federal law designed to end child labor by prohibiting the movement in interstate commerce of any good made by children under the age of fourteen.

The Court’s restrictive approach to Congress’s commerce clause power brought the justices into a major confrontation with President Franklin Roosevelt, who was dealing with the nation’s crippling crisis, the Great Depression, by seeking creative legislative initiatives to get the country back on its economic feet. The Court’s laissez-faire approach to the economy ran headlong into Roosevelt’s hands-on approach. The Court, not easily dissuaded from its narrow view of Congress’s commerce power, struck down the Farm Bankruptcy Act of 1934, the National Industrial Recovery Act of 1935, and a tax on agricultural processors in the Agricultural Adjustment Act of 1933. A frustrated Roosevelt threatened to pack the Court with justices who would approve his initiatives, a threat that badly backfired with the general public.

In 1937, the Lochner era ended when the Court, ruling 5–4 in
National Labor Relations Board v. Jones & Laughlin Steel Corp
., upheld the National Labor Relations Act of 1935. The board had charged the steel company with discriminating against workers who were union members. The New Deal Court abandoned its view that labor relations had
only an indirect effect on commerce and, for the first time, held that Congress could regulate intrastate employment activities that had “a close and substantial relation to interstate commerce.”