Moving Forward to the Past

March 30, 2012
Guest Post

By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.

At one point in our history, about a hundred years ago, the Supreme Court measured congressional authority and its limits based on formal categories.  For example, the Court said that Congress had authority to regulate “commerce,” but not “manufacturing.”  It said that Congress had authority to regulate matters with a “direct” effect on commerce, but not those that had an “indirect” effect.  And it ruled that Congress could regulate matters of “national” concern, but not those of “local” concern.
These formal categories had no support in the text, history, practice, or precedent of the Constitution.  Yet an activist Court created and used them to flex its muscle to sharply curtail congressional authority based only on its own ideological views about government power and state sovereignty.  This cramped, formalistic, and ideologically-driven jurisprudence predictably failed, and we happily put it to rest in 1937. 
But the ACA litigation now threatens to resurrect it.
The states’ case against the minimum coverage provision depends on a formalistic approach that takes us right back to the rejected jurisprudence of the early twentieth century.  For example, the states argued that the minimum coverage provision exceeds congressional authority because it is a “requirement,” not a “regulation.”  They said that provision goes beyond congressional Commerce Clause authority because it regulates “inactivity,” not economic “activity.”  And they argued that it exceeds the commerce authority because it regulates before an individual enters the market, not “at the point of” market entry.  Justice Kagan highlighted this problem in Tuesday’s argument, but the states’ claims seemed to gain at least some traction with as many as five of the Justices, presaging a potential move back to the discredited jurisprudence of the past.
But if a majority seemed sympathetic to an arbitrary, formalistic approach to congressional authority to enact the minimum coverage provision, it seemed even more sympathetic to a cramped and arbitrary approach to federalism in arguments over Medicaid expansion.  On Wednesday, the government argued that federalism principles mean that Congress can’t “coerce” states by offering extraordinarily generous financial incentives to expand Medicaid—in short, that a federal program that offers a better deal for the states somehow impinges even more on state sovereignty.  It said that Congress’s apparent assumption that all states would gladly sign up for Medicaid expansion (because it’s such a good deal for them) means that Congress must have unconstitutionally coerced the states.  It argued that federal taxes of state citizens violate state sovereignty, because they crowd out the states’ ability to tax their citizens for their own programs.  And it suggested that congressional spending authority is more restricted when the authority is used for programs outside other Article I, Section 8 powers (like the Commerce Clause).
These topsy-turvy arguments turn reality, and the jurisprudence, upside down.  They surprisingly say that the better the deal for the states, the more a federal policy intrudes on state sovereignty.  They equally surprisingly say that state citizenship is all that matters, even when it’s the federal government that’s doing the taxing (of federal citizens).  And they surprisingly revive the old Madisonian position that the spending power is cabined by other Article I, Section 8 authorities, even as the Court put that that debate to rest and adopted the Hamitonian position (that the spending power is not so cabined) in 1936.  These positions are designed to take us back to the early twentieth century.  They merely dress up the old formalisms and jealous protections of state sovereignty in new clothes of federalism.  And they seemed to gain the sympathy of as many as five Justices on the Court.
Worse, these positions are completely arbitrary and without support in the text, history, practice, or precedent of the Constitution.  Indeed, the states backed off even their weak textual claims (based on the Tenth Amendment) and pitched their case based only on abstract notions of federalism.  The arguments Wednesday were notable for the nearly complete lack of discussion of actual authority, and for their wide-ranging discussions of ideas of “coercion” and “state sovereignty” based only on the advocates’ and the Justices’ own conceptions of those ideas.  (Perhaps this dodge of authority shouldn’t surprise us, given that the text, history, and modern practice and precedents all line up squarely on the side of the government.)  In short, the Court now seems primed to issue a ruling that turns reality and the law upside down in favor of a conception of federalism that it seems to pull out of thin air.  And it would do this in the name of overturning a valid enactment of the politically accountable branches.  This is the definition of judicial activism.
This kind of activist ruling would do serious damage to constitutional separation of powers, federalism, and the rule of law.  Worse, it would ultimately do serious damage to the Court’s own credibility and legitimacy.  And worse still, this kind of ruling would inevitably backfire on us all.  That’s because today’s opponents of federal power—who opportunistically use the judiciary to promote their short-term political interests, instead of fighting it out in the political branches, where it belongs—will inevitably become tomorrow’s advocates of federal power when the political winds shift.  And yet we’d all be stuck with a lousy ruling on federalism.