Three Types of Limits on Congressional Power

In Marbury v. Madison, John Marshall wrote:

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

Once the Court moves beyond the original meaning of the text to allow Congress to reach activity that is neither “interstate” nor “commerce” (using the Necessary & Proper Clause as its warrant), there still remains the need to establish some limit on these “implied” nontextual powers, lest the national government becomes a government of general powers.  The “express prohibitions” provided by the Bill of Rights don’t count since they equally constrain state governments.  Were these the only constraints on federal power, then the scope of the power of Congress would be exactly the same as the power of states.  And this proposition has always been rejected by the Supreme Court.  As Chief Justice Rehnquist affirmed in Lopez:

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, §8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft (1991). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”…

So the challenge is to limit, somehow, the scope of the power that lies beyond Congress’s plenary power to “commercce . . . among the several states.”

One possible constraint is political.  But , as John Marshall stated above in Marbury, a “political” constraint which allows the legislative branch to define the limits of its own power is not sufficient.  What is needed is a judicial constraint.  Much more can be said about why political constraints are insufficient, but time and space are limited.  Suffice it to say that, whether or not Marshall (and Rehnquist) are wrong about the need for a judicially-enforced constraint, even the New Deal Court in Wickard declined to adopt “political constaints” as the only constraint on the enumerated powers of Congress.  See Barry Cushman, Rethinking the New Deal Court.

But there are only two types of judicially-enforceable limits.  The first is fact-based.  Examine the “rationality” of a particular measure to see if it is really serving the enumerated power.  This was the method commonly employed by the Supreme Court before the New Deal in both Due Process and Commerce Clause cases, but which the Supreme Court has generally rejected in favor of hypothetical rational basis scrutiny.  The government contends that the power to impose economic mandates on the people is limited by the fact that “health care is different” from other sorts of economic mandates, e.g. a mandate to buy GM cars.  We disagree.  Were this to be a genuine limit, we would be entitled to a hearing to decide this factual question. On remand, the courts would also have to adopt some standard of review to decide whether we or the government were correct in our respective assessments of the facts.  This standard cannot be modern hypothetical rational basis scrutiny, because that would be no scrutiny at all and would fail to provide a judicially-enforceable constraint.  The Justices know this.  While heightened factual scrutiny of the choice of congressional means would not bother me, it runs contrary to the Court’s approach since the New Deal and would surely bother the Justices.

This leaves the approach employed by the Court in Lopez:  identify a judicially-administrable categorical limitation on the implied powers of Congress.   This is my reading of what Justice Rehnquist was attempting to achieve in Lopez: identify a categorical limitation on the implied power of Congress to go beyond the regulation of interstate commerce itself and reach intrastate activity that was not itself “commerce” which would be consistent with prior post-New Deal decisions (“this far”).  So he adopted the nontextual and nonoriginalist distinction between the regulation of intrastate activity that is “economic” (“this far”) but not “noneconomic” (“no farther”) regardless of whether the noneconomic activity could rationally be said, in the aggregate, to substantially affect interstate commerce.

In Raich we asserted that, because Angel Raich’s and Dianne Monson’s activities were noneconomic — no money was being exchanged for marijuana — their conduct fell outside the line the Court had drawn in Lopez and Morrison.  The government contended that Angel’s and Dianne’s activity was “economic” because it substituted for the economic activity of buying marijuana on the market.  Had the Court accepted the position of the government, Raich would have replaced Wickard as the outermost reach of Congressional power and led to an unlimited Commerce Clause/Necessary & Proper Clause power.  As I said during oral argument, every activity, even marital sexual relations, could be construed as “substitute” for something available on the market.

Perhaps sensing this, happily, the Court implicitly rejected the government’s expansive theory, and therefore greatly limited the scope of its holding in Raich, when it held that the production and consumption of a “commodity” was quintessential economic activity, relying on the definition found in a 1966 Webster’s dictionary.  Indeed, by limiting its holding to the particular dictionary definition of “economic” from Webster’s, Raich actually narrowed the scope of Lopez, assuming this was to be the exclusive definition of “economic” that would be employed by the Court in the future.  For example, buying insurance, while broadly “economic” is not the purchase or consumption of a “commodity.”   In this sense, the holding of Raich was limited to a power that had clearly been exercised in the past (“this far”): the power to prohibit the intrastate production and consumption of a commodity.

Justice Scalia’s concurrence in Raich extending the power to reach noneconomic activity when doing so was essential to a broader regulation of interstate commerce, seems more ambitious, which is why the government has relied so heavily upon it throughout this litigation.   Yet I think Justice Scalia was responding to another feature of Raich that was downplayed during the litigation and never explicitly examined.  We were bringing an “as applied” Commerce Clause challenge in which we did not contest the power of Congress to regulate the interstate drug trade.  Neither did we contest the power of Congress to reach the intrastate drug trade in states that had not legalized such trade.  We were attempting to carve out a sub-class of activities from that which Congress was trying to regulate: wholly intrastate cultivation and use of marijuana for medical use as authorized by state law.  Much of oral argument was devoted to defending the cogency of this sub-class.

Although such as applied challenges had been brought before, none had ever succeeded.  I believe that Justice Scalia’s Necessary & Proper Clause focused opinion was his attempt to handle this aspect of the case by explaining why, if Congress could regulate genuinely interstate commerce in intoxicating substances (as we conceded), as part of its broader regulatory scheme, it could also reach this subset of activities that could not feasibly be distinguished from the commerce over which it had control.  For Justice Scalia, the fact that these activities may be noneconomic (not for money) did not make it any less necessary to reach them, or at least so Congress could decide in its discretion.

It remains to be seen whether Justice Scalia will be willing to extend this rationale to a facial challenge to a power to mandate the purchase of insurance by individuals because it is “essential” to the power of Congress to regulate the terms by which insurance companies do business.  This is the government’s contention, but it is a considerable step beyond the problem Justice Scalia was wrestling with in Raich. Recall that, in the facial challenge in Comstock, Justice Scalia joined Justice Thomas’s dissenting opinion in which Justice Thomas reasserted Justice Scalia’s holding in Printz that the means chosen by Congress (commandeering the states) was “improper.”  So Justice Scalia still holds the view that some means of executing the commerce power, while necessary under a rational basis approach, are nevertheless improper.  The question for him is whether his analysis of “necessity” in Raich is similarly qualified by the “impropriety” of the chosen means.

To date, the government has been unable to articulate a “categorical” limitation on the power to mandate that individuals enter into contracts with private parties, yet it has not been bold enough to assert that the only constraint is “political.”  And I do not believe that their “factual” limitation (“health care is different”) will fly.  If the Court does accept this approach, then assuming it also adopts a modern hypothetical rational basis approach, it would effectively be adopting the “political constraints only” position.  Maybe, as in Raich, the Court will simply say that because the “decision” not to buy health insurance is “economic,” as the government urges, it can be reached under Lopez.  But the power to reach economic “decisions” is as capacious as the government’s “substitution” theory in Lopez Raich.  It is a mere fig-leaf to cover the “political constraints only” position that will fool no one if it adopted.  This would not even amount to the “symbolic” federalism reading of Lopez; it would be no federalism at all.  Which, again, is why this case is such a big deal.