Understanding the New Federalism of the Rehnquist Court: A Response to Randy

In my co-blogger Randy Barnett’s interesting new article, Who Won the Obamacare Case (And Why Did so Many Law Professors Miss the Boat)?, Randy argues that law professors didn’t predict the relative success of his arguments in the ACA case because they failed to recognize the dynamics of federalism of the Rehnquist Court — which in turn became the dynamics of federalism of the Roberts Court. Randy writes:

I believe most law professors missed the boat in this case because they have never properly understood the New Federalism of the Rehnquist Court. They all share what my Georgetown colleague Larry Solum has called the same “constitutional gestalt” about the meaning of the so-called New Deal settlement. To oversimplify, they think the New Deal and Warren Court’s rulings established that the Commerce and Necessary and Proper Clauses give Congress a power to regulate the national economy at its discretion, subject only the express prohibitions in the Constitution and perhaps some selected unenumerated rights. But law professors have missed the possibility of an alternate interpretation of the New Deal Settlement that comprises a third constitutional gestalt – the gestalt that informed our whole litigation strategy. It is this: For better or worse, all the powers that were approved by the New Deal and Warren Courts are now to be taken as constitutional. But any claim of additional new powers still needs to be justified. Put another way, the expansion of congressional power authorized by the New Deal and Warren Courts established a new high water mark of constitutional power. Going any higher than this requires special justification.

This gestalt can be summarized as “this far and no farther” – provided “no farther” is not taken as an absolute but merely as establishing a baseline beyond which serious justification is needed. As Chief Justice Rehnquist observed in Morrison, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where the activity is economic in nature.” This is why the general acceptance of our claim that the individual insurance mandate was “unprecedented” was so crucial to the unexpected legal success we enjoyed. Accepting our claim that the mandate was unprecedented placed the burden of justification on the government.

Randy asserts his view of the Rehnquist Court’s gestalt but does not build a case for it beyond the votes in the Affordable Care Act case — which is certainly understandable given that this is just a short essay. But given that Randy singles me out as an example of someone with a false understanding of the “constitutional gestalt” of the Rehnquist Court, I thought I would say more about where and how I developed my sense of the Court’s approach to federalism issues.

Most of my understanding of the Rehnquist Court’s “constitutional gestalt” comes from my experience as a law clerk for Justice Kennedy during the Rehnquist Court. I clerked from 2003 to 2004, which was a Term of several closely-watched federalism cases including Tennessee v. Lane, Sabri v. United States, Frew v. Hawkins, and others. To my dismay, the pro-federalism side lost every time. You don’t hear much about those cases anymore because, well, the federalism side lost. But I wrote about the “gestalt” I observed that Term just a year later over at SCOTUSblog, where I was guest-blogging on the day that Gonzalez v. Raich was decided in June 2005. I started off with a short post, Raich as Constitutional Law Doctrine, in which I asked, “Whatever normative views you have about the proper scope of the Commerce Clause, or of the merits of medical marijuana as policy, isn’t the opinion by Justice Stevens relatively unremarkable as an application of existing constitutional law doctrine?” Tom Goldstein responded by raising the question of the Rehnquist’s Court’s constitutional gestalt:

I agree with Orin’s comment below that Raich on one level seems unremarkable. But I suppose that it has received enormous attention within constitutional law circles because of the continuing uncertainty about whether Lopez and Morrison repesented just outlying data points in the structure of the Constitution or instead a serious them[e] that would emerge and contradict much of the previous conventional wisdom about federal powers. It looks like today’s opinion pretty decisively answers that question in favor of the former.

I responded to Tom with my understanding of the Rehnquist Court’s approach to federalism in a post called The Rehnquist Court and Symbolic Federalism:

I agree. At the same time, I don’t think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it’s been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.

More broadly, it seems to me that the theme of the Rehnquist Court’s federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

As soon as the issue takes on practical importance, however, the votes generally aren’t there. If anything, the surprise today was that there were three votes for the pro-federalism side.

I further expanded on the point in another post that day, The Rehnquist Court and the Mathematics of Federalism:

In federalism cases, . . . there is no clear majority on the current Court. Four Justices — Stevens, Souter, Ginsburg, and Breyer — more or less share the same basic view that the Court has little to no role enforcing federalism constraints. The other five Justices would impose some limits on the scope of federal power, but don’t really share common ground on exactly what those limits should be.

Although classifying each Justice is quite difficult, a very rough first cut might be that Justice O’Connor tends to focus most on preserving a role for the states; Justice Kennedy on recognizing the dignity of the states and preventing federal overreaching; Rehnquist on restoring pre-1960s limitations on federal power; Scalia on finding and enforcing textual principles for limiting federal power; and Thomas on restoring an originalist vision of the Constitution. These approaches can overlap, and Justices might sign on to opinions that aren’t exactly their cup of tea. But often they don’t.

The mathematics of federalism on today’s Supreme Court, then, is that the four Justices who do not favor judicial enforcement of federalism constraints only need one additional vote to form a majority. Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices. The odds are that the former will happen more often than the latter, which is why victories for federalism principles have tended to be rare and on relatively narrow (that is, symbolic) issues.

That was my impression from having been a law clerk, at least.

Of course, today’s Roberts Court is not the same as the Rehnquist Court. Almost 20 years has passed since Lopez, and there are new Justices on the Court (including two amongst the pro-federalism group of Justices). And that is why I closely followed the Supreme Court’s argument and decision in Comstock v. United States, the 2010 case about the federal government’s power to detain sexually dangerous individuals. The Fourth Circuit had struck down the law in Comstock because it “grant[ed] the federal government unprecedented authority over civil commitment—- an area long controlled by the states.” (emphasis added). But at oral argument before the Supremes, most of the Justices seemed totally unconcerned by this “unprecedented” expansion of power into this tradition state domain. I attended the argument in the case, and I noted unhappily in a post that day that the government’s argument in favor of federal power seemed “shockingly broad.” But it seemed that the government would coast to an easy victory in Comstock. And my post added a vote and assignment prediction:

If I had to make a more specific guess on a vote and opinion assignments, I would guess that it ends up being 7-2 [in the government’s favor], with Scalia and Thomas dissenting. And I’ll go out on a limb and say Chief Justice Roberts will assign the majority opinion to Alito or Kennedy. But these are obviously just guesses, which I’ll remind you of if I get it right but forget if I get it wrong.

I was right about the vote and the two dissenters, but I was way wrong about the assignment. A Chief Justice with a lopsided conference vote on a case in an area that he cares about would typically assign the opinion to a Justice with a roughly similar worldview to his own. But Roberts assigned the majority opinion to Breyer instead of Alito or Kennedy, and he was then the fifth vote in favor of Breyer’s opinion while Alito and Kennedy concurred without joining Breyer. I thought that was pretty shocking: Given that Breyer doesn’t seem to believe that the Court should enforce any federalism limits, why assign a majority opinion to him to approve an “unprecedented” expansion of government power? You can’t read too much into any one case, but I took the lesson to be that Chief Justice Roberts wasn’t particularly committed to limits on federal power. And without Roberts, the federalism side had at most four losing votes.

That brings me back to Randy’s achievement. The remarkable aspect of the Affordable Care Act case was how much the Court had turned around in just a year or so since Comstock. The Court that heard the oral arguments in Sebelius was very different from the Court that heard oral arguments in Comstock a year earlier — and in turn very different from the Rehnquist Court and its symbolic federalism. While the challenge ultimately didn’t prevail, it came much closer than anyone expected. Something changed. I wonder if Randy noted the change himself in a comment he gave Politico while the cases were pending. “A year ago,” Randy was quoted as saying, “it was a long shot” just to get the the issue before the Supreme Court. But that had changed: ““Now, it’s seen as a 5 to 4 case. And nobody’s exactly sure which way the 5 to 4 will come down.” Maybe that was a misquote, and of course people use a different level of precision when speaking to the press than in scholarship. But I think the comment accurately captured the changing gestalt over the course of the Sebelius litigation.