I listened to the audio recordings of the three days of oral arguments last week.  Anyone looking for a prediction as to how the Court will rule is not going to get one from me.  And the reason is not that I’m afraid of being wrong.  To make such a prediction one has to keep the question at hand in mind: does the Affordable Care Act exceed Congress’ Commerce Clause power?  (The Commerce Clause grants Congress power “to regulate Commerce… among the several states.”  U.S. Const. Art. I, sec. 8, cl. 3.)  There was actually very little questioning about this at the oral arguments.  Rather, the liberal justices premised their questions with references to the “uninsured”, E.R. care, and free riders.  None of these concerns has anything to do with the Commerce Clause.  These are policy concerns and should have little weight in a court, particularly the nations’s highest Court.  Federal courts are created pursuant to Art. III of the Constitution to hear cases falling within their limited jurisdiction.  They are not law making bodies.  Legislating is addressed in Art. I (Congress).  If the liberal justices were acting as justices they should have asked the lawyers to explain why the health care mandate falls within the Commerce power.  Pointing out the perceived horrors that will ensue if the law is invalidated is how a legislative body, not a court, would deal with the issue.

The conservative justices did not perform much better.  I was hoping they would ask the Solicitor General, Donald Verilli, to explain why, after he conceded there is a national health care market, there is any need for Congress to act pursuant to its Commerce power.  After all, Justice John Marshall’s early Commerce Clause cases establish that the framers created the Commerce Clause to empower the federal government to create national markets unimpeded by state tariffs.  Thus, the objective was mercantilism, i.e., to enable fledgling American industries to get goods to the Atlantic and interior waterways for shipping to other states and abroad without the states getting in the way, as had occurred under the period of the Articles of Confederation.  John E. Nowak, Constitutional Law at 262 (3d ed. 1986)(“That is, the rationale of the commerce clause was to create and foster the development of a common market among the states, eradicating internal trade barriers, and prohibiting the economic Balkanization of the Union”).   But no Justice took up this line of questioning.

The government takes the view that the Commerce power expands beyond the creation of a national market, and its preservation, so as to allow any regulation that concerns it.  The Solicitor General this opened his argument by stating, “This is an issue of market regulation, and that’s how Congress looked at this problem.”  But the Supreme Court has previously refused to allow Congress to do this.  For example in Howard v. Illinois Cent. R. Co., 207 U.S. 463 (1908) it struck down a law providing that railroads would be legally liable for injuries they cause their employees.  The Court conceded that Congress was legislating against the backdrop of interstate commerce; the law only applied to raliroads crossing state lines.  But the fatal flaw was that the object of the law, assigning strict liability for injuries to employees, had nothing to do with the act of moving in interstate commerce.  It was ancillary to it.  And so it is with the Affordable Care Act.  Yes, purchasing health insurance may (though is not always) an interstate transaction.  But the provision at issue, the mandate to buy health insurance, is ancillary to the purchase itself.  Verilli stated, “We think this is a regulation of people’s participation in the health care market.”  He did not say: this is the regulation of an interstate transaction.  He could not say so because the law itself creates the duty to make the transaction, and the transaction may not always be interstate.  (Many people will buy insurance from their own state insurance exchanges,  a type of buying cooperative run by the state to get policies for high risk people.)  This is very far from what is required: not participation in an interstate market, but rather, an actual interstate transaction.  As Marshall reasoned, the power to regulate such ancillary aspects of commerce resides with the police power of the states, not Congress.  Id.

My critique displays a preference for originalism as a tool to decide difficult cases.  A court should start with the original meaning of the provision.  Why is it there?  What problem was the legislature trying to address?  It would have been preferable if the Constitution contained a definition section, as modern statutes do.  But even that does not always answer the question of the meaning of the word or phrase.  For example, RICO defines “pattern of racketeering activity” as at least two acts within a ten year period.  But no court in the country would uphold a RICO case with a mere two acts of racketeering alleged.  It has sensibly been interpreted by the Supreme Court as requiring a long-term period of racketeering or a short-term period which threatens to continue into the future.

Today the Supreme Court issued an opinion in which it interpreted sec. 1983, of the Civil Right Act of 1871, the federal law which allows people to sue state officials for constitutional torts, i.e., false arrests, warrantless searches, etc.  The Court held, contrary to the plain language of sec. 1983, that a private citizen cannot sue someone for lying in a grand jury.  The Court has long recognized immunity for such behavior, and it would not create an exception in 1983 cases.  It stated, “We do not simply make our own judgment about the need for immunity.  We have made it clear that it is not our role to make a freewheeeling choice, and that we do not have a license to create immunities based solely on our own view of sound policy.”  Rehberg v. Paulk, 566 U.S. __ (April 2, 20102)(internal quotations omitted).  And so it should be with the Commerce Clause.  We should welcome a return to first principles regardless of what implications it may have for the heath care law.  Politicans are already envisioning a new health care law before they have even read the Supreme Court’s view of the Commerce power to legislate in the area.  This is what I want to know, and the oral arguments shed very little light on the issue.