The Roberts Court: The Struggle for the Constitution (42 page)

The pendulum swung even farther toward broader commerce power in 1942 in a case that would loom large in the legal battle over the health care law. Roscoe Filburn was an Ohio farmer who raised dairy cattle and poultry and planted winter wheat, part of which he sold and the rest he kept for use on his farm. The new Agricultural Adjustment Act imposed an acreage allotment on wheat farmers in order to keep wheat prices from crashing. Filburn’s wheat harvest violated his allotment and he was penalized 49 cents per bushel. The farmer sued, arguing that the wheat grown over the allotment stayed at home and did not enter commerce. When his case reached the Supreme Court, Justice Robert Jackson ruled for the government, writing in
Wickard v. Filburn
: “But even if [Filburn’s] activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ ” The decision is viewed by some as a turning point or a “high-water mark” in the Court’s commerce clause jurisprudence.
⁸

If Congress could use its commerce clause power to reach Roscoe Filburn’s home use of wheat with its minimal connection to interstate commerce, how could it not use the same power to reach individuals who do not buy health insurance but free-ride off of those who do, increasing costs in one of the largest interstate markets today? the Obama administration and supporters would argue later in the health care case.

For the next nearly sixty years, Congress’s commerce power grew in scope and became the basis for federal regulation of the environment, food and drugs, securities, and other areas. Racial discrimination had a substantial effect on interstate commerce, the Court ruled, when it upheld the landmark Civil Rights Act of 1964 which banned discrimination in public places, such as motels and restaurants.

However, the pendulum swung back in 1995 when the Rehnquist Court struck down the federal Gun-Free School Zone Act, which banned possession of a firearm near a school zone, because Congress had exceeded its commerce clause authority. The decision,
United States v. Lopez
, was part of the Rehnquist Court’s “federalism revolution” in which five justices—Rehnquist, O’Connor, Kennedy, Scalia, and Thomas—prevailed in a series of bitterly fought cases cutting back Congress’s lawmaking powers under both the commerce clause and Section 5 of the Fourteenth Amendment while enhancing the rights of states.
Lopez
was followed in 2000 by
United States v. Morrison
, in which the same five justices invalidated the civil damages remedy for victims in the federal Violence Against Women Act. In both
Lopez
and
Morrison
, the majority held that the laws’ connection to interstate commerce was too insubstantial. Congress “may not regulate noneconomic . . . conduct based solely on that conduct’s aggregate effect on interstate commerce,” wrote Chief Justice Rehnquist in
Morrison
.

The Court had not struck down a federal law on commerce clause grounds in nearly sixty years, and the two rulings shocked the political and legal establishments. However, the ground under Congress soon shifted again. Five years later, in
Gonzales v. Raich
, the Rehnquist Court held that Congress did have authority under the commerce clause to prohibit the local cultivation and local use of homegrown marijuana for medical purposes even where it complied with state law. The difference this time was Justice Scalia, who switched sides, joining the Court’s liberal wing—Stevens, Souter, Ginsburg, and Breyer. The case of that old Ohio farmer, Roscoe Filburn, played a key role in the decision. Whether it is marijuana or wheat, Stevens wrote, production of a commodity meant only for home use can have a substantial effect on the national market for that commodity. Congress had a rational basis to believe that failure to regulate that type of marijuana would affect the price and demand for marijuana in the national market and leave a huge hole in federal enforcement of the Controlled Substances Act, concluded Stevens.

Scalia, in a concurring opinion, explained why he believed the situation
in
Raich
differed from those in
Lopez
and
Morrison
. In
Raich
, he explained, Congress was regulating purely intrastate activity—home use of marijuana—in order to control the interstate market in marijuana. Neither
Lopez
nor
Morrison
, he wrote, involved “control over intrastate activities in connection with a more comprehensive scheme of regulation.”

Randy Barnett, who was leading the debate against the health care legislation, had argued and lost the
Raich
case in 2005; it was a defeat not easily accepted. “My interest in the commerce clause came about because of the Raich case,” he recalled. “In the late 1990s, I started working first with the Open Cannabis Buyers Club and their commerce clause challenge to the Controlled Substances Act. Then two other lawyers and myself brought the Raich case on behalf of Angel Raich. That was how I started to learn a lot about it.”
⁹

Lopez
and
Morrison
, restricting Congress’s commerce power, would become weapons in the arsenal of those challenging the new health care law.
Wickard
and
Raich
, with their broader view of Congress’s authority, would be claimed by the law’s supporters.

The Roberts Court had little experience with commerce clause cases in its first four terms. However, coincidentally, a month before the health care law was enacted, the justices heard arguments in a case whose decision later that May encouraged White House and Justice Department lawyers and other health care supporters about their future chances before the justices. In
United States v. Comstock
, the justices were asked to decide whether Congress had exceeded its power when it enacted a law authorizing federal courts to order the civil commitment of sexually dangerous prisoners after they had served their prison sentences. A 7–2 majority, led by Breyer, said Congress was within its authority. Breyer relied on the necessary and proper clause, which, he wrote, “makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’ ” The civil commitment law, he explained, was a necessary
and proper means of exercising the authority that Congress has to create federal criminal laws, to punish their violation, to imprison violators, and to protect the public.

Only Justices Thomas and Scalia dissented, with Thomas writing that the necessary and proper clause empowers Congress to enact only those laws that “carry into execution” one of the enumerated powers in the Constitution. There was no such link between the civil commitment law and the legislative powers enumerated in Article I, Section 8, he said.

White House and Justice Department lawyers believed the
Comstock
decision bolstered one of their defenses of the health care law: the individual mandate was a necessary and proper means of accomplishing the comprehensive market reforms in the law, and those reforms clearly fell within Congress’s enumerated power to regulate interstate commerce. Roberts had joined the
Comstock
majority and that suggested he might be open to the government’s necessary and proper clause argument. And if Scalia remained faithful to his concurrence in
Raich
, the medical marijuana case, they thought, he might seriously entertain their argument that the individual mandate was an integral part of a comprehensive scheme of economic regulation just as medical marijuana fell within the government’s comprehensive regulation of the market for controlled substances.

•  •  •

With the signing of the Affordable Care Act and the filing of the lawsuits, the race to the Supreme Court was on. The White House immediately started holding strategy meetings, and so did the Justice Department, with close communication between the two. That closeness was unusual but not surprising, given the high stakes and significance of the massive health care program. The White House wanted to know what was being done.

In another unusual step, Attorney General Eric Holder contacted Robert Weiner, a partner in the Washington law firm of Arnold &
Porter, and asked him to join the department to oversee the defense of the health care law. Weiner, a former senior counsel in the Clinton White House and former Thurgood Marshall clerk, had broad experience in dealing with complex litigation and public policy issues, such as global warming, financial reform, and national security. He agreed to take on the new job as the associate deputy attorney general, and he was as passionate about the health care law’s constitutionality as David Rivkin and Bill McCollum were about its unconstitutionality.

“My view from the beginning was if the courts applied the law as it stood, we would win,” he recalled. “Whether courts would apply the law at each level was not as clear.” The decision by the Republican state attorneys general to file their challenge in the federal court in Pensacola—which had no real connection to the case—was not accidental, he added.
¹⁰

The Justice Department assembled a broad group of its lawyers with trial and appellate experience to participate in weekly strategy sessions. The department’s Office of Federal Programs, headed by Ira Gershengorn, took the lead on defense of the law at the first level of courts: the district court.

Like their opponents, the department lawyers faced some early, important procedural questions and two particularly crucial substantive ones. The first substantive question involved the Anti-Injunction Act (AIA), an 1867 law that bars lawsuits that try to block the assessment or collection of any federal tax. Taxpayers who object to a tax can have their day in court after they pay the tax by suing for a refund. The theory behind the law is that without the lawsuit prohibition, the government would be tied up in court fighting tax challenges and never be able to collect the revenue it needs to operate. If the AIA applied, the courts would not be able to consider any challenges to the health care law until the penalty for not having health insurance—enforced by the Internal Revenue Service—showed up on income tax returns in 2015.

Lawyers in the department’s tax division pushed to have the government argue that the AIA applied, not because they wanted to delay
court action on the health care lawsuits, but because they needed to protect the fundamental purpose of the AIA and not risk having it undermined. “They said that they had a very strong institutional interest in making [AIA] arguments in a variety of contexts and they should be made,” said a lawyer close to the discussions.

The second crucial issue in the defense of the law was whether to raise Congress’s power to tax as a basis for the individual mandate. Another group in the strategy sessions pushed to include the argument that the individual mandate was a constitutional exercise of Congress’s power to tax and spend for the public welfare as well of its commerce power. “The theory was that two arrows in your quiver are better than one,” recalled the lawyer. “That faced a lot of pushback given what the president had said about a tax.” He was referring to the Obama administration’s public, and very political, position that the mandate was not a tax but a penalty, and that the new law did not increase taxes.

Despite pushback from the White House, the department decided to make both the AIA and the tax power arguments in the district courts—the first front in the fast-approaching battle.

At the time, another high-ranking administration lawyer involved in the discussions recalled thinking, “What we should expect is there are going to be district judges who rule for us and district judges who rule against us. And, in part, that was probable because of the [challengers’] ability to forum-shop [search for the most potentially favorable court in which to file the lawsuit], which the other side did effectively.

“Then I thought there would probably be some split decisions in the courts of appeals because there were multiple cases going on,” he added. “I wasn’t surprised. There’s a narrative out there—how the other side was able to take its legal position from the fringe to the mainstream. I think that’s a fair characterization of it. You could see that happening; it was distressing.”

As the lawyers on both sides prepared to head into district court on health care, a Supreme Court justice, the longest serving among the nine and the unassuming but effective leader of the liberal side of the bench,
was preparing to leave. On April 9, 2010, Senior Associate Justice John Paul Stevens informed President Obama that he intended to retire on the day after the Court ended the term for its summer recess. The Court was now facing its fourth vacancy in five years.

Although Stevens’s successor would be a Democratic appointee and like Souter’s replacement by Sotomayor would not change the ideological balance on the Court, his departure would be felt acutely in a number of ways. The only justice on the Roberts Court with active duty military experience, having served in the U.S. Navy during World War II, Stevens brought a realistic view of government power to the George W. Bush administration’s exercise of that power in the war on terror. As senior associate justice, Stevens had the power to assign majority decisions whenever he was in the majority and the chief justice was in dissent. He either wrote or assigned the majority opinions in a series of terrorism-related cases, and those decisions reined in broad assertions of power by the president and Congress, imposed due process—fairness—in the government’s detention of alleged enemy combatants, and reinforced the importance of the Great Writ of habeas corpus and the role of the federal courts in the constitutional scheme.

“Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber,”
^I
Stevens wrote in
Rumsfeld v. Padilla
, the 2004 case involving the American “shoe bomber” Jose Padilla, who was being detained by U.S. officials. “For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”