Commerce Clause Counter-Revolution

If the individual health insurance purchasing mandate is declared unconstitutional, many conservatives will undoubtedly hail the decision as a heroic act that takes the nation back from the brink of a yawning abyss of federal tyranny, a nation where proud Americans are forced to eat broccoli. But depending on how such a hypothetical decision is tailored, there’s another “floodgates” proposition that needs to be discussed: the possibility that unraveling ObamaCare could unravel decades of Supreme Court Commerce Clause decisions that undergird much of the contemporary landscape of domestic policy and civil rights protections.

This is the issue Michael Kinsley raises in a piece at Ten Miles Square. And it’s an issue no one should just brush away as scare-mongering.

Ever since Wickard v. Filburn (1942), with only a couple of minor exceptions, the courts have upheld the use of federal power under the Commerce Clause, which gives the federal government the authority to “regulate commerce.” Even the 1964 Civil Rights Act is considered constitutional as a regulation of commerce.

Now, maybe the court has been wrong all this time. Maybe the federal government’s authority under the Commerce Clause is much narrower. Maybe that authority doesn’t extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers.

Basically anything the government does that has ever been justified by the Commerce Clause will be open to challenge. For the sake of their own sanity and summer recesses, the justices ought to proceed cautiously.

I’ll offer a personal validation of Kinsley’s concerns. When I took Constitutional Law a few decades ago, we were taught (by the conservative Dean of a relatively conservative law school, the University of Georgia) that Commerce Clause jurisprudence had removed virtually any practical constitutional limitation on the power of the federal government to regulate economic and social activity (barring some violation of individual rights guaranteed elsewhere in the Constitution), on grounds that a modern economy made almost any activity you could imagine a part of interestate commerce. The key Court decision upholding the highly controversial public accomodations section of the Civil Rights Act of 1964 involved a small Birmingham barbecue joint. It was, the Court ruled, part of interstate commerce because it was located near a major highway.

Now as Kinsley notes, you can certainly argue if you wish that the Ollie’s Barbecue case was wrongly decided and sent America down the kind of slippery slope opponents of ObamaCare warn against. That was certainly the view of Ollie himself, who said of the December 1964 decision: “It seems to me that the ownership and use of private property is essential to the American way of life.” A spokesman for another restaurant affected by the decision said it opened “a frightful door to the unlimited power of a centralized government.”

But let’s don’t pretend that invalidating the individual mandate would represent some sort of defensive reaction against a frightfully unprecedented constitutional doctrine offered to promote a frightfully unprecedented expansion of federal power. It would instead represent a judicial counter-revolution of potentially great scope–a counter-revolution at least as shocking as the sudden transformation of conservatives from being the inventors and strong supporters of an individual health insurance purchasing mandate to opponents shrieking about tyranny.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.