A Constitution for All Times

5. The Unhealthy Activism of the Roberts Court

The Patient Protection and Affordable Care Act—a.k.a. Obamacare—is one of the most momentous pieces of federal legislation of the last halfcentury . But ironically the opponents who launched the failed constitutional attack on the Act used its modesty as the basis for their challenge. If Congress had voted to provide every American with health care through a national health service, that law would have been almost immune from constitutional challenge. It has long been understood that the power to tax and spend—enumerated in Article I of the Constitution—lies largely with Congress: it decides what to tax and how to spend the revenue.To be sure, those powers are limited, but the limits come 5. The Unhealthy Activism of the Roberts Court  a constitution for all times from other constitutional provisions—for example, the First Amendment would prohibit Congress from imposing a special tax on atheists or providing better benefits to registered Republicans—and, most importantly , from our democratic system, which gives voters the power to eject from office those representatives who support objectionable policies. So why did the Act come within a hair’s breadth of being struck down, saved by a 5-4 Supreme Court decision that saw Chief Justice Roberts join the Court’s moderate wing? The answer lies in an argument advanced by libertarians and conservatives who sought a return to pre-New Deal interpretation of the commerce clause. That clause gives Congress the power to “regulate Commerce . . . among the several States.” Although the 19th-century Supreme Court drew a sharp line between commerce and other aspects of the economy—such as agriculture and manufacturing—by the mid-20th century, the Court had recognized reality. As Justice Robert Jackson put it: pamela s. karlan  Questions of the power of Congress are not to be decided by reference to any formula which would give controllingforcetonomenclaturesuchas‘production’... and foreclose consideration of the actual effects of the activity in question upon interstate commerce. That statement came in the Court’s unanimous 1942 decision in Wickard v. Filburn. There, a farmer challenged a federal penalty for growing and then consuming on his farm more wheat than a federal marketing order had permitted him. (The controls on wheat supply were part of a price-support program intended to help farmers during the Great Depression .) Filburn argued that the commerce power did not permit Congress to regulate his at-home consumption because his activities were purely local, thus not part of interstate commerce. Justice Jackson rejected that contention, writing that Filburn’s grain “supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market.  a constitution for all times Home-grown wheat in this sense competes with wheat in commerce.” He pointed out that the effect of Filburn’s decision on interstate commerce, “taken together with that of many others similarly situated, is far from trivial.” Since Wickard v. Filburn, the Court has deferred to congressional judgments about the scope of the commerce power. That deference sustained, among other things, the public-accommodations provisions of the Civil Rights Act of 1964, one of the cornerstones of modern antidiscrimination law. Nearly all modern federal labor and consumer-rights legislation depends on this expansive understanding of the commerce power. And although the Rehnquist Court later struck down two federal statutes on the grounds that the activities they regulated (possessing a gun near a school and committing gender-motivated violence ) were non-commercial, it reaffirmed the proposition that Congress can regulate all essentially economic activity. Its 2005 decision in Gonzales v. Raich, for example, upheld Congress’s power to criminalize pamela s. karlan  the personal cultivation and possession of marijuana for medical use. Justice Stevens’s opinion explained that Congress had enacted comprehensive national drug laws and found “no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole” in that regulatory regime. And both he and Justice Scalia in his concurring opinion also relied on the Necessary and Proper Clause of Article I, which authorizes Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its enumerated powers. The argument for the constitutionality of the individual mandate as a permissible regulation of commerce flowed easily from...