Only Two Votes on Supreme Court to Extend Limits on Commerce Clause?

January 10, 2011
Guest Post

By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

In a dissent from a denial of certiorari published this morning in Alderman v. United States, Justices Thomas and Scalia characterized the case as a lost opportunity to reassert limits on Congress's power under the Commerce Clause. Thomas wrote, "Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence." He was referring to U.S. v. Lopez and U.S. v. Morrison, two Rehnquist Court cases that, for the first time since the New Deal, invalidated federal laws on the ground that they exceeded Congress's Commerce Clause power.

Lopez and Morrison were repeatedly cited by Virginia Judge Hudson in his ruling that Congress overstepped its powers in enacting the minimum coverage requirement of health care reform. Some commentators have suggested that the Supreme Court's views on Lopez and Morrison in the Alderman case could presage the Court's approach to the constitutionality of health care reform. While the legal issue and facts are different in the health care reform context, the Court's approach to the Commerce Clause certainly bears notice.

Thomas (pictured) was incensed that the Lopez/Morrison framework was being "undermined by a 1977 precedent," implicitly suggesting he believes that cases pre-dating the conservative majority on the Supreme Court should not be given much deference. But Thomas and Scalia could not garner any other votes for their dissent.

Indeed, there was no way Chief Justice Roberts could join them without contradicting his sworn testimony at his confirmation hearings. Therein Roberts repeatedly asserted that Lopez and Morrison "didn't junk all the cases that came before." He cited the Gonzales v. Raich case over and over, in response to multiple questions, as a recent example of a Rehnquist Court case recognizing that Congress "has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level."

It's more interesting that Justice Alito didn't join the dissent. As a Third Circuit Judge, he had written a dissent in United States v. Rybar, deriding his colleagues for ignoring the "lesson" of Lopez, when the majority relied on a "long line of Supreme Court cases" pre-dating Lopez. In his confirmation hearing, Alito refused to tip his hand as to his proclivities on the reach of Lopez and Morrison. Despite direct questions on this issue, Alito declined to provide any glimpse of his views on the subject. And again, Alito has said nothing explicit about his views by not joining the Alderman dissent. But perhaps his silence in Alderman provides some hope that he is not inclined to join Thomas and Scalia in extending the Lopez/Morrison reasoning.

Justice Kennedy concurred in Lopez, emphasizing the "limited holding" of the case. Given his recent role as the swing vote on the Court, his choice not to join the Alderman dissent could possibly bode well for the future of health care reform. And since the more progressive justices dissented in Lopez and Morrison, the decision of the remaining justices not to join the Alderman dissent is completely predictable.

Of course, no one can know how the justices will apply Lopez and Morrison when the health care law reaches their Court. But today's denial of certiorari provides at least some suggestion that the Court is not eager to constrain Congress's power to enact laws.