During oral argument this week on the health care challenges before the U.S. Court of Appeals for the Fourth Circuit, Judge Diana Gribbon Motz responded to the challengers’ attempt to distinguish between “activity” and “inactivity” for purposes of regulating under the Commerce Clause by saying:
When Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned 'activity' as a crucial factor.
In a reaction post to the argument, George Mason University law professor David Bernstein cautioned that embracing an 18th or early 19th century understanding of the Commerce Clause could be dangerous. But blogger and College of Saint Rose professor Scott Lemieux thinks the ACA easily stands up to early 19th century scrutiny — assuming, of course, “that the most important Supreme Court opinions of that period count.”
At Lawyers, Guns and Money, he explains:
The libertarian trick is to pretend that there was a consistent, uncontroversial understanding that the federal government had a very limited ability to regulate interstate commerce that was broken only during the New Deal. But, unless you believe that John Marshall and Alexander Hamilton lack the constitutional authority of Roger Taney and James McReynolds, that’s not the case. Looking at the long sweep of American history, it’s the Jacksonian and Lochner eras that are anomalous, and both were rejected as decisively as can be imagined.
Lemieux participated in an ACS phone briefing this week for bloggers on judicial nominations, during which he noted that the federal courts have long been skewed to the right due to the many Republic-appointed nominees.
As a consequence, he notes in a more detailed analysis of the oral argument forThe American Prospect, Tuesday’s oral argument before three judges appointed by Democratic presidents “were not necessarily indicative of the ultimate fate of the ACA.”
“But,” he adds, “they did reveal how weak the legal arguments against it are.”