Opinion and Taking Issue

RUSTHOVEN: Much riding on Supreme Court decision

April 14, 2012

RusthovenIndiana is one of 26 states challenging ObamaCare, with Attorney General Greg Zoeller attending the first day of Supreme Court argument. Afterward, liberal observers were stunned the justices were taking seriously what conservatives said from the outset: If Congress can order every American to buy a product, then commerce clause power is boundless, and the principle of limited, delegated government powers is dead.

Liberal observer-in-chief was former Harvard Law Review editor Barack Obama, who warned an “unelected group of people” not to “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Time for some history and—from another former editor of that journal—a commerce clause primer.

ObamaCare passed the House 219-212; the Senate cut off debate with no votes to spare. Not a “strong majority.”

Power to invalidate unconstitutional laws was invoked in Marbury v. Madison (1803) and on numerous occasions. Not “unprecedented,” not “extraordinary.”

Presidents have often been unhappy with the court. Eisenhower called appointing Earl Warren and William Brennan his biggest mistakes. Teddy Roosevelt said of an appointee, “I could carve out of a banana a judge with a stronger spine.” The justice was Oliver Wendell Holmes.

But attacking the court’s independence fares poorly. Franklin Roosevelt, incensed at invalidation of New Deal legislative innovations, famously tried to “pack the court.” Save for one six-year period (1863-1869), the court’s size since 1837 has been nine justices. FDR tried to change this with the “Judicial Procedures Reform Bill of 1937.”

This would have allowed him to appoint another justice for each member of the court who did not retire within six months of reaching age 70, up to a maximum of 15 justices overall. Coincidentally—or maybe not—six justices were over 70 in 1937.

The bill failed 70-20 in an overwhelmingly Democratic Senate.

One decision angering FDR (here’s where we segue to the law lesson) was A.L.A. Schechter Poultry Corp. v. U.S. (1935), voiding minute regulation of the poultry industry as beyond commerce clause authority. To Roosevelt, the “sick chicken case” (Schechter was charged with selling two diseased members of the species) “relegated the nation to a horse and buggy definition of interstate commerce.”

Today’s law professors (Obama was one) largely agree, castigating conservative jurists as out of step with the modern 1930s. But Schechter was decided 9-0. One of the nine was Louis Brandeis, widely respected and no conservative. Brandeis sent a post-decision message to Roosevelt via “Tommy the Cork” Corcoran: “Go back and tell the president that we’re not going to let this government centralize everything.”

Seven years later, a court featuring seven FDR appointees was doing just that. Wickard v. Filburn (1942) held Congress could punish a farmer for growing more wheat than new federal quotas allowed, even to feed his own cattle. Wickard theorized the wheat would have been bought from someone, which would eventually have some effect on interstate commerce, and therefore was subject to commerce clause regulation.

This is the “butterfly” commerce clause view (as in “a butterfly flapping its wings in China affects the weather in New York”). This is what liberals embrace to defend ObamaCare.

The court stepped back from Wickard in U.S. v. Lopez (1995), rejecting an attenuated “inference upon inference” thesis that forbidding guns in school zones was regulating interstate commerce. U.S. v. Morrison (2000) rejected similar reasoning that would make it “difficult to perceive any limitation on federal power.” Right both times.

If ObamaCare is upheld, no real limitation exists. Plain and simple, that’s what’s at stake.•

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Rusthoven, an Indianapolis attorney and graduate of Harvard College and Harvard Law School, was associate counsel to President Reagan. Send comments on this column to ibjedit@ibj.com.

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