Linda Greenhouse on the Individual Mandate Litigation and the “End” of the “Federalism Revolution”

Famed Supreme Court reporter Linda Greenhouse has a very uneven New York Times blog post on the individual mandate litigation and the Supreme Court’s federalism jurisprudence. Some of her points are at least reasonable. For example, I too think it’s quite possible that the Supreme Court will ultimately uphold the mandate; I even agree with her that this is more likely than the opposite result, though the chances of the anti-mandate forces are much better than the many once thought. Greenhouse may also be correct in her speculation that the deciding vote will ultimately be cast by Chief Justice John Roberts.

Some of her other claims are dubious or misleading. For example, she cites my article on United States v. Comstock in support of her claim that Comstock is a key precedent supporting upholding the mandate. “[T]he implications of its elevation of the necessary and proper clause were clear to critics of the newly enacted health care law,” she writes, referring to me (since no other critics are cited). It’s true, as Greenhouse notes, that I wrote in that article that Comstock is “a step in the direction of interpreting the clause as a virtual blank check for Congress to regulate almost any activity it wants” (emphasis added by me for this post). But of course the key argument against the mandate is that it regulates inactivity. Even more important, I also wrote in the same article that the mandate probably fails the five part test established by the Comstock majority (pp. 262-63), and that Comstock doesn’t even address the most important Necessary and Proper Clause issue raised by the mandate litigation – the definition of what counts as a “proper” law (pp. 263-64).

It’s possible that Greenhouse simply doesn’t agree with my analysis of Comstock. That’s fine. As I explained in the article, Comstock is vague on several key points, so multiple interpretations of its meaning are possible. We may not know what it really means until the Supreme Court clarifies it in some future case. But Greenhouse should not cite me in a way that gives the impression that she and I agree about the implications of Comstock for the mandate litigation.

Greenhouse also makes the dubious claim that the Supreme Court’s 2001 decision in Nevada v. Hibbs was “the case that effectively brought an end to the [Rehnquist Court’s] federalism revolution.” Hibbs ruled that Congress had the power to force state governments to extend family leave to their employees under the Family and Medical Leave Act, overriding what the Court had previously said was the Eleventh Amendment bar against congressional authorization of private lawsuits against state governments. But, as Greenhouse notes later in her article, Hibbs reached this conclusion on the grounds that the FMLA was a tool for combating sex discrimination, preventing which is a goal of the Fourteenth Amendment (which, according to the Court, supersedes Eleventh Amendment sovereign immunity when the two conflict). Outside the confines of sex and race discrimination, Hibbs left the Court’s Eleventh Amendment sovereign immunity jurisprudence completely intact. And of course it did not undercut the Court’s pathbreaking decisions in Lopez and Morrison limiting Congress’ Commerce Clause authority.

If there is a case that really trimmed the sails of the federalism revolution, it was not Hibbs but Gonzales v. Raich, where the Court endorsed the idea that the Commerce Clause gives Congress the power to regulate almost any “activity,” especially if it can be considered “economic” under a very broad definition of that term. The individual mandate litigation is only viable in the wake of Raich because it represents an almost unique instance where Congress has tried to regulate inactivity.

Strangely, Greenhouse does not even mention Raich in her piece. That may be because doing so would have undermined her speculation that Chief Justice Rehnquist might have voted to uphold the mandate. She extols Rehnquist’s role as the author of Hibbs, but ignores the fact that he joined Justice Sandra Day O’Connor’s forceful dissent in Raich. Since Rehnquist died five years ago, no one can really know what he would think of the mandate. But the man who joined O’Connor’s stinging critique of Raich’s “breathtaking” definition of economic activity on the grounds that the Commerce Clause should not be interpreted to “sweep all of productive human activity into federal regulatory reach” might well have been skeptical of the mandate’s constitutionality.