Supreme Court Considers Case on “Unprecedented” Assertion of Congressional Power

You’re no doubt familiar with this Term’s Supreme Court case involving a constitutional challenge to an “unprecedented” recent federal law. According to the challengers, the new statute exceeds Congress’s Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.

According to the challengers, this unprecedented step simply goes to far and exceeds Congress’s limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law.

Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. To be sure, there were precedents that pointed the other way. Indeed, the law professor had himself argued a prior case that raised some similar issues a few years ago, and in that case the Supreme Court had rejected the challenge. But the challengers had a way of reading that earlier precedent (and others) in a way that they felt supported their claim and opened the door this time. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.

That’s the case, anyway. I’m sure you’re all familiar with it. Now let me make a prediction. This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress’s power. According to the Court’s decision, Article I “empowers Congress to determine the . . . regimes that, overall, in that body’s judgment, will serve the ends” of Article I’s grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw, the Court will note. And the challenge therefore was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. The majority opinion will conclude:

[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.

Two Justices will dissent, one of which is Justice Alito.

How can I be so confident in my prediction? Because the Supreme Court handed down its decision on Wednesday, in Golan v. Holder.