In Today’s Health Care Ruling, a Whiff of Bush v. Gore

January 31, 2011
Guest Post

By Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, and author of the ACS Issue Brief, "Mandatory Health Insurance: Is it Constitutional?"
Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century - since the New Deal - and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.

Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.


In his concurring opinion in Gonzales v. Raich (2005), Justice Scalia spelled out in exquisite detail how the necessary and proper clause gives Congress power to do whatever is necessary to make a broader statutory scheme work - whether or not the specific means employed would be, standing alone, valid under the commerce clause. In that opinion he wrote:

Where necessary to make a regulation of interstate commerce effective, Congress may regulate even . . . activities that do not themselves substantially affect interstate commerce.

Scalia approvingly quoted Chief Justice Rehnquist in the Lopez decision that limited commerce clause authority: "Though the conduct in Lopez was not economic, the Court [Rehnquist] nevertheless recognized that it could be regulated as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated."

This is a precise characterization of the role of the individual mandate in relation to the insurance reforms in the ACA.

Scalia wrote that under the necessary and proper clause, the government "possesses every power needed to make [its solution to a national economic problem] effective."

Again, one could not ask for a more precise picture of the mandate.

Justice Kennedy wrote a concurring opinion in the 1995 Lopez decision which, 5-4, held the no guns within 1000 yards of a school requirement beyond Congress' power to regulate commerce. Kennedy concurred in this decision with acknowledged misgivings, and wrote a long and expansive decision rejecting the constrained pre-New Deal interpretation of the commerce clause. He said, among other things: "Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy."

It would be difficult to identify a statute more clearly directed at attempting to build a stable national economy - a goal to which the mandate is essential in Congress' judgment.

Chief Justice Roberts, in his 2005 confirmation hearing, testified that Gonzales v. Raich (upholding prosecution under the Controlled Substances Act, enacted under Congress' commerce clause authority, of a woman in California growing marijuana for her own medicinal use) showed that the 1995 Lopez decision and a 2001 5-4 decision striking down a provision of the Violence Against Women Act as in excess of the commerce power "did not junk" the expansive post-New Deal commerce clause interpretations.

Roberts, at his 2005 confirmation hearing, said, "Reading that opinion, it's quite clear that they're not interpreting the law, they're making the law." Just last year, Roberts joined the Court's decision upholding an aggressive application of the necessary and proper clause, underscoring the black-letter law rule that the necessary and proper clause is independent of specifically enumerated powers such as the commerce clause.

None of these statements and rulings are legitimately compatible with the decisions by Vinson and Hudson to strike down the individual mandate.

Both decisions give off more than a whiff of Bush v. Gore, especially Judge Vinson's sweeping and unsubstantiated ruling that striking the mandate requires striking the entire ACA.