High court set to tackle states' rights, U.S. powers
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When professor David Herring's new class on lawyering convenes next semester at the University of Pittsburgh School of Law, he and his students will be discussing marijuana, wheat crops, handguns -- and the fate of the 2010 federal health care overhaul, which is now destined for a Supreme Court review.
If those issues don't seem intertwined on the surface, they will to his students, Mr. Herring said. And they will to the nine Supreme Court justices.
The court likely will take up the 2010 health care law in the coming year, now that the Obama administration has requested it resolve the issue sooner than later. That means a verdict could be issued by June 2012, as President Barack Obama and his GOP opponent hit the home stretch in the election campaign.
At issue is not whether the federal government can regulate health care -- it can -- but whether the 2010 Affordable Care Act's "individual mandate" provision, which penalizes those who can afford health insurance coverage but don't acquire it, is constitutional.
Among other cases, the justices will probably be looking at 1942's Wickard v. Filburn (about wheat), 1995's United States v. Lopez (guns), and 2005's Gonzales v. Raich (marijuana), all of which deal with Congress's ability to regulate economic activity imparted by the Constitution's commerce clause.
"These are the most relevant cases," Mr. Herring said. All, in one way or another, hinged on the commerce clause and may inform the current justices as to how the clause should apply to the individual mandate.
Ultimately, it is expected that the judges will be asked to decide whether inactivity -- that is, a decision to not buy insurance and to pay for health care out-of-pocket if the need arises -- is tantamount to activity, and has an effect on interstate commerce and can be regulated by Congress.
Here's how the cases apply:
This is the oldest of the cases being commonly cited by lower courts and attorneys trying the various health care cases. Ohio farmer Roscoe Filburn was ordered by the federal government to destroy wheat he had been growing on his farm for personal consumption. The amount of wheat he was cultivating was in excess of the limits established by the U.S. government in its effort to regulate, and drive up, wheat prices during the Depression.
The Supreme Court eventually ruled production quotas under the Agricultural Adjustment Act were constitutional because, even though Mr. Filburn wasn't producing the wheat for interstate sales or consumption, his decision to grow excess wheat, if repeated thousands of times by thousands of wheat farmers, indeed had an effect on interstate commerce.
That means "personal" wheat production, according to the court, was an activity that could be regulated under the commerce clause.
The clause allows Congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Government attorneys defending the Affordable Care Act are pointing to this case as precedent under which the government can regulate activities, even if they are seemingly minor and even if the activity is purportedly non-commercial, as long as the activities in aggregate have a big effect on commerce.
That's likewise the case when it comes to a person's decision to not carry insurance, and instead pay for medical costs (should they arise) out-of-pocket, the federal government is arguing.
In 1992, Texas high school senior Alfonso Lopez Jr. brought a .38-caliber revolver into his school. He was caught and soon charged with violating the federal Gun-Free School Zones Act.
The Lopez legal team sought to dismiss the indictment on the grounds that the 1990 school zones act was unconstitutional. A trial court denied that motion, saying the sale of handguns is a legitimate interstate commercial activity and Congress may regulate it.
The Supreme Court, in an eventual 5-4 decision, disagreed, saying that while the purchase and distribution of handguns may well fall under congressional purview as an economic activity, where and when the guns are carried do not. U.S. v. Lopez is generally viewed as the first Supreme Court case since the end of the New Deal to limit, rather than confirm or expand, commerce clause power.
In the same way, justices may decide that while the health insurance industry falls under congressional purview, the matter of who "carries" insurance does not, and that Congress cannot compel a citizen to enter a contract with a private company under threat of tax or penalty.
Eight years after Lopez, Morrison was another victory for states' rights over the commerce clause. In that case, the Supreme Court ruled that parts of the Violence Against Women Act of 1994 were unconstitutional because they overreached on the commerce clause (as well as the 14th Amendment).
Leaning on the Lopez case, the five majority justices said the section of the act that gave victims of gender-motivated violence the special right to sue attackers in federal court did not fall under commerce clause purview.
Like Lopez, the Morrison case was another Supreme Court effort to limit the commerce clause's impact, after decades of ruling in the opposite direction.
"Those [cases] really unsettled the law," said Arthur D. Hellman, law professor at the University of Pittsburgh.
"When the court leaps like that -- and of course it does it in many, many areas -- there will always be arguments about [where the] new issue falls. ... You're talking about all of this case law interpreting the rather sparse language of the Constitution."
After California legalized the use of medicinal marijuana in 1996 and permitted in-home cultivation of marijuana plants for personal use, the state law came into conflict with federal law, which forbade homegrown marijuana.
Defendant Angel Raich, who was growing it in his home, ended up the subject of a 2002 Drug Enforcement Administration raid.
Mr. Raich later sued, saying the federal Controlled Substances Act violated the commerce clause, among other constitutional provisions, because growing a small amount of legally consumable marijuana did not substantively affect interstate commerce.
The federal government disputed that, saying consuming homegrown marijuana for medical purposes still affects the interstate market of marijuana, especially if enough people engage in the same behavior. Thus, Congress may regulate and prohibit such consumption.
The Supreme Court, in a split decision, agreed. Justice Antonin Scalia wrote a separate concurring opinion, saying that his reading of the commerce clause as well as the necessary and proper clause allows the regulation of noncommercial activity if the failure to do so would have an impact on a related commercial activity:
"The power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market. ... Congress may regulate noneconomic intrastate activities only where the failure to do so 'could [undercut]' its regulation of interstate commerce."
That opinion makes Justice Scalia a potential swing vote, said Mr. Herring, the Pitt constitutional law professor.
"A key person to watch is Justice Scalia -- he wrote this excellent concurring opinion in the Raich case. ... Boy, you read that opinion and it's really giving Congress a broad scope of power. ... He's going to have a difficult time deciding this [health care] law is unconstitutional."
While many legal scholars are fixated on the individual mandate's interplay with the commerce clause, there are other issues at play.
James F. Blumstein, professor at Vanderbilt Law School, says there are two "sleeper" issues:
One is the expanded Medicaid mandate that was included in the health care overhaul. Can the federal government make such sweeping changes to the Medicaid program? In other words, is forcing the states to expand Medicaid eligibility, and rosters, a reasonable contract modification or does the federal government owe the states a realistic opportunity to opt out of the Medicaid contract?
That issue is one of state sovereignty; namely, can the federal government control how the states treat their employees in terms of wages, hours and benefits or is that a power reserved for the states?
Put another way, are the states employers like any other and thus subject to federal workplace regulations (including federal health care mandates)? Or do the individual states exist outside of the realm of interstate commerce?
"This is a major federalism issue," Mr. Blumstein said, and one that will surely revisit a landmark case from 1985:
The Supreme Court ruled the commerce clause gives Congress the authority to apply the Fair Labor Standards Act to state and local governments, as well as private employers.
That decision effectively wiped out the 1976 decision National League of Cities v. Usery, which had held that the Fair Labor Standards Act could not constitutionally be applied to state governments.
The Garcia ruling also pondered the 10th Amendment, which says "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
The Garcia case was a dispute over overtime pay. When National League of Cities became law, the transit authority had informed its workers that it would no longer be paying overtime wages, as previously required.
The narrow Garcia ruling said the commerce clause, reinforced by the supremacy clause -- which says that federal law trumps state law -- allows for federal intervention in states' employer-employee relations. The 10th Amendment, meanwhile, was viewed as a "truism" -- a statement of fact that is self-evident, but added little to the Constitution.
Though the feds won the day, "the dissent was very forceful in Garcia," with three justices penning separate dissents, Mr. Blumstein said.
"That's where the law has been. This is now taking up that gauntlet, after 25 years."
First Published October 17, 2011 12:00 am