Evan Soltas
Jun 28, 2012

How the Court Will Say It

Supreme Court
My prediction of how the Court will rule is on the record already.

But, given the intense interest that the Court's ruling tomorrow on the mandate case, I thought I would share a little bit more where I can be of assistance.

I have a reasonably close observer's understanding of the precedent cases. Below I are the "money quotes" which I am reasonably certain the anti-mandate side, or maybe even both sides, will cite.

In other words, here are the words the Court will use in their decision, the precedent cases to which the opinions will refer and in which they will drape their arguments.

U.S. Const. art. I, § 8, cl. 3, the Interstate Commerce Clause:
“The Congress shall have the Power [t]o regulate Commerce among the several States.”

Gibbons v. Ogden, 22 U.S. 1 (1824):
To “regulate Commerce” is “to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution."

The "genius and character" of the Constitution is federalism.

“[T]he enumeration of…power[s]…to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated.” (Cited in U.S. v. Morrison and U.S. v. Lopez.)

NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1 (1937):
Congress may regulate "activities with a close and substantial relation to interstate commerce.”

“The commerce power may not be extended to embrace [everything]…thereby creating a completely centralized government. The question is necessarily one of degree.”

United States v. Lopez, 514 U.S. 549 (1995):
“For nearly a century thereafter, the Court's Commerce Clause decisions dealt but rarely with the extent of Congress' power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce.”

Congress may not regulate commerce in “a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated…This we are unwilling to do.”

“[E]ven these modern-era precedents which have expanded congressional power under the
Commerce Clause confirm that this power is subject to outer limits.”

License Cases, 46 U.S. 504 (1847):
"But what are the police powers of a state? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a state passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same powers -- that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion.the authority to pass it cannot be made to depend upon the motives that may be supposed to have influenced the legislature, nor can the court inquire whether it was intended to guard the citizens of the state from pestilence and disease or to make regulations of commerce for the interests and convenience of trade."

Concurrence of Justice Frank Murphy in Hirabayashi v. United States, 320 U.S. 81 (1943):
“While this Court sits, it has the inescapable duty of seeing that the mandates of the Constitution are obeyed…[I]n its performance we must not forget that few indeed have been the invasions upon essential liberties which have not been accompanied by pleas of urgent necessity advanced in good faith by responsible men.” [Personal comment: I doubt they will cite this, actually, but I hope they do, because it is one of my favorite opinions.]

Supreme Court briefs and oral argument for this case:
The government “concede[s]…the lack of any doctrinal limiting principles.” Govt.’s Br. 51.

“Congress has the authority under the commerce power and the necessary and proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market.” U.S. Dept. of H.H.S v. Florida, Supreme Court case 11-398, petitioner’s oral argument, transcript page 12, lines 10-13.

“[O]ur position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the -- the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and…when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.” U.S. Dept. of H.H.S v. Florida, Supreme Court case 11-398, petitioner’s oral argument, transcript pages 44-45, lines 19-25 and 1-4.

United States v. Comstock, 551 F. 3d 274 (2010):
The “powers reserved to the States…[are] the whole, undefined residuum of power remaining after taking account of powers granted to the National Government.”

“[T]he precepts of federalism embodied in the Constitution inform which powers are properly exercised by the National Government in the first place.”

US v. Morrison, 529 U.S. 598 (2000):
"[W]e always have rejected readings of the Commerce Clause and the scope of federal power that
would permit Congress to exercise a police power…as unworkable if we are to maintain the Constitution's enumeration of powers.”

Marbury v. Madison, 5 U.S. 137 (1803):
"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."

McCulloch v. Maryland, 17 U.S. 316 (1819):
“This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.” 

Hamilton v. Kentucky Distilleries Co., 254 U.S. 146 (1919):
"That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true."

Brown v. Maryland, 25 U.S. 419 (1827):
“The power to direct the removal of gunpowder [for the purpose of public health] is a branch of the police power, which unquestionably remains and ought to remain with the states.”

United States v. Carolene Products, 304 U.S. 144 (1938):
“[T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators…There may be narrower scope for operation of the presumption of constitutionality when  legislation appears on its face to be within a specific prohibition of the Constitution.”

Federalist No. 45:
“The 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 former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [Note: James Madison wrote this one.]