January 23, 2012

Some thoughts on affirmative federalism

By Damien M. Schiff Senior Attorney

Professor Randy Barnett has an interesting post analyzing the two main ideological camps in the Obamacare litigation.  He contends that how one comes out on the constitutionality of the Act can be determined based on one’s view of the Supreme Court’s decisions in Lopez and Morrison.  For Barnett, those who would uphold Obamacare interpret Lopez and Morrison as creating narrow, economic activity-based exceptions to the general, background rule that Congress can regulate anything it deems proper to regulate.  In contrast, Barnett asserts that those who would hold Obamacare unconstitutional view Lopez and Morrison as articulating not so much an “economic vel non” activity analysis, but rather a “go no further” command to Congress.  Hence, in Barnett’s view, Lopez and Morrison essentially conceded to Congress its New Deal arrogation of power, but forbad it from assuming any new power.

If Barnett is right, then Obamacare may be in for some trouble.  Even the Act’s defenders generally concede that the Act is unprecedented.  If that’s correct, then under Barnett’s “go no further” interpretation of Lopez and Morrison, the Act would exceed Congress’s Commerce Clause power.  The charm of Barnett’s reading of Lopez and Morrison is that it reaches the (in my view) correct result without having to force the Court to engage in an intellectually unsatisfying disquisition on the nature of economic activity, or, as Barnett discusses in another post, the extent to which regulation of noneconomic activity must be necessary to vindicating an economic regulatory scheme.

As attractive as Barnett’s reading of Lopez and Morrison may be, I very much doubt whether the Court will accept it.  In my view, the Court is desperately searching for a theory to unify its now disfavored New Deal Commerce Clause jurisprudence with its Rehnquist-era federalism redux precedents.  Simply calling “enough is enough” might satisfy someone like the Chief Justice, but would never make a rule-centric Scalia or a strong originalist Thomas happy.  And such an obviously political entente would be unattractive to Kennedy precisely because it would be so obvious.

Perhaps there is a better answer that still lies in Lopez and Morrison.  Chief Justice Rehnquist’s opinion in Lopez makes the point that, had the federal government’s theory been accepted, it would have given Congress power to regulate traditional areas of state power.  Put another way, the feds’ view would have effectively eliminated the states as governmental bodies rivaling for power with the feds.  In that sense, the Chief Justice’s opinion harkens back to the Court’s pre-New Deal case law, where challenges to federal authority were viewed not so much as asking the question “Has Congress exceeded its enumerated powers?” but rather “Have the states’ Tenth Amendment prerogatives been violated?”  A good example of what one might term an “affirmative federalism” can be found in Hammer v. Dagenhart, where the Supreme Court overturned federal child labor laws that, on their face at least, only regulated goods in interstate commerce.  The Court reasoned that what Congress was trying to do was to regulate the terms of employment in manufacture within the states, a traditional state function.  Thus, the Court overturned the federal law by looking at the law’s impact on the state, not by analyzing the law’s relationship to interstate commerce, i.e., viewing the issue through a Tenth Amendment, not a Commerce Clause, lense.

Of course, the New Deal Court in United States v. Darby overturned Hammer.  But I believe that the Court in Lopez attempted to resurrect Hammer, at least to the extent that an inquiry into a federal law’s impact on the larger federal-state balance is an important part of the Commerce Clause analysis.  And as applied to Obamacare, one can easily envision the Court concluding that to allow the federal government to force people into economic transactions would not only be unpredented (see Barnett) but also an impermissible trenching on the states’ Tenth Amendment powers.

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