President Obama raised a fire storm when he recently seemed to challenge the Supreme Court's power to declare the health care law unconstitutional. He said: "Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." Republicans chided Obama, a former Constitutional law professor, for forgetting about Marbury v. Madison, which established the Court's right to declare federal laws unconstitutional.
It is true that since the Marbury decision in 1803 until 2002, the Supreme Court has found federal laws unconstitutional 158 times. In the last 10 years, its have exercised that power in 14 additional cases (see discussion below) for a total of 172. The justifications for doing so fall generally into three distinct categories.
First, the Court has declared many federal laws unconstitutional because they infringe upon individual rights protected by the Constitution, particularly by the First Amendment. Two years ago, the Court invalidated a federal law that criminalized the commercial creation, possession and sale of films or videos depicting animal cruelty in United States v. Stevens. That same year, the Court decided the Citizens United case, which struck down a provision of the Bipartisan Campaign Reform Act prohibiting independent electioneering expenditures by corporations and unions. Two other provisions of that law were also struck down since 2002. In the last 10 years, the Justices also invalidated two federal laws restricting access by children to material on the Internet. It also invoked the Second Amendment in striking down a District of Columbia law restricting access to guns in the home, in the famous Heller case.
The power of the Supreme Court to protect individual rights from Congressional encroachment seems unquestioned. That surely is its prime function, to ensure that the other branches of government do not violate the Bill of Rights protecting the people.
A second category of cases involves the Court's function as arbitrator among the branches of government. One of the key protections of freedom in the Constitution is the structural separation of powers among the three branches. Congress must pass laws, the president must execute them, and the courts must interpret those laws. If one branch encroaches on the authority of others, there is a danger that such encroachment will upset the balance of power between them and increase the possibility of one branch dominating the others. Thus the Court acts as the umpire, not calling balls and strikes, as Chief Justice Roberts stated during his nomination hearings, but insuring that each branch stays on its own turf, as Sen. Sam Ervin once said in an argument before the Court. Thus last year, the Court invalidated a provision of the Sarbanes-Oxley law that restricted the president's power to remove members of an investigatory board created under that law.
The third area involves the most questionable use of Supreme Court power. The Court assumes the power to say to Congress, not that it violated anyone's rights or that it passed a law that crossed the line that separated one branch of government from another, but simply that Congress lacked the power to act. States have the power to pass any law they choose (subject to both state and federal constitutional restraints). But when Congress passes a law, it must rely on specific grants of power contained in Article I, Section 8 of the Constitution.
From the start, the Supreme Court held that these grants must be broadly interpreted. Chief Justice John Marshall wrote in the early case of McCulloch v. Maryland: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Marshall also insisted on a broad reading of the Commerce Clause of the Constitution. That clause gives Congress the right to "regulate Commerce ... among the several States." In one of the earliest cases dealing with Congressional power under the Commerce Clause, Gibbons v. Ogden, Marshall wrote that the Commerce Power "is the power to regulate; that 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."
From time to time, the Court has inserted limits on Congress' commerce clause power. In the later part of the 19th century, the Court did so in order to protect the rights of business that bristled at the efforts of Congress to regulate their actions. The Court once held that Congress could not apply the antitrust laws to the manufacturer of goods before those products crossed state lines. But Oliver Wendell Holmes rejected that analysis in a later case in which he held that Congress could regulate any activity that fell within "current of commerce among the states."
In the 1930s, the Supreme Court struck down a number of the New Deal laws on the grounds that the activities restricted by the laws affected interstate commerce only "indirectly." Those decisions were subsequently overruled by a series of cases in the 1940s. In one of those cases, Wickard v. Filburn, the Court held that if a single farmer exceeded his acreage allotment and fed the excess grain to his own cows, Congress could still regulate that activity. Such actions affected interstate commerce since, if other farmers took the same action, that would reduce demand for grain in the national market, which Congress was trying to increase in order to aid farmers.
We are now in the third phase of restricting Congressional power under the Commerce Clause by imposing limits on that power that simply do not exist in the words of the Constitution. In the 1990s, the Supreme Court held that Congress can only regulate commercial activities that "substantially affect interstate commerce." No such limit had ever been found necessary in any case after the 1930s. Thus, based on this new approach, a federal law that protected women from domestic violence was struck down since such violence was not an "economic activity," even though such violence had a severe effect on our economy.
Now, based on the questions asked during oral argument on the constitutionality of the health care law, the Court seems to be concerned that Congress may have exceeded its power in passing the "individual mandate" provision in the law. The opponents argued that Congress was regulating "inactivity." But the correct analysis is to view the individual mandate as simply one part of the "current of commerce," as Holmes did. The Court should ask if and how the regulated activity affected the national market in health care, as it did in the Wickard case.
Two of the most conservative appellate judges in the country, Laurence Silberman (of the District of Columbia Circuit Court of Appeals) and Jeffrey Sutton (of the Sixth Circuit) had no trouble upholding the law in cases brought before them, rejecting the argument that Congress cannot regulate "inactivity." Judge Silberman wrote: "If Congress can regulate even instances of purely local conduct that were never intended for, or entered, an interstate market, we think Congress can also regulate instances of ostensible inactivity inside a state." Judge Sutton was a leading exponent of states' rights, and argued a number of important cases on that issue before the Supreme Court. Nevertheless, in his concurring opinion upholding the constitutionality of the health care law, he upheld the health care law against the claim of states' rights, echoing the words of Chief Justice Marshall:
"Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No -- for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent "regulate," "commerce," "necessary" and "proper" might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce."
President Obama was correct in urging the Court to interpret the Constitution as it reads, giving Congress the broad power to regulate interstate commerce in all its phases, as Chief Justice John Marshall, Oliver Wendell Holmes and other conservative judges have urged.
Leon Friedman is a Professor of Constitutional law at Hofstra Law School. He is the editor of, and contributor to, "The Justices of the United States Supreme Court: Their Lives and Major Decisions" to be published in November.