I’ll always remember the day the Supreme Court declared the Gun-Free School Zones Act unconstitutional in United States v. Lopez. It was 1995, and I was still in law school. Al Gore had not yet invented the Internet, so my fellow students and I were still ignorant of the decision when we went to our afternoon classes. My professor walked into class, paused a moment for dramatic effect, and then solemnly announced that the Supreme Court had just declared the New Deal unconstitutional.
The Court’s narrow reading of Congress’s Commerce Clause power indeed opened the door for many new challenges to federal statutes, including federal criminal statutes — I remember we had a number of these on the docket during my clerkship year after law school. But Lopez proved far less radical than many hoped and others feared.
The Lopez “revolution” finally petered out with the Court’s 2005 decision in Gonzales v. Raich, which affirmed Congress’s power to prohibit a seriously ill California woman from using locally grown marijuana under the state’s compassionate use law. So much for the Rehnquist Court’s great federalism revival.
Might federal defendants benefit more from the Court’s new decision in National Federation of Independent Business v. Sebelius?
After all, although the Court upheld the “individual mandate” as a valid exercise of Congress’s taxing power, a five-justice majority felt that the law exceeded Congress’s commerce power. In its Commerce Clause analysis, the lead opinion, authored by Chief Justice Roberts, seems much closer in spirit to Lopez than to Raich.
Defense counsel should (and doubtlessly will) plumb the Roberts opinion, as well as the joint dissent of Justices Scalia, Thomas, Alito, and Kennedy, for sound bites that can be used in arguments challenging the constitutionality of various federal criminal statutes. However, I doubt that NFIB will ultimately have any more profound or durable impact on federal criminal law than Lopez.
Just count the noses. Of the six justices in the Raich majority, four remain on the Court. How about the four newbies? Two, Sotomayor and Kagan, would have upheld the individual mandate on Commerce Clause grounds; they, presumably, would have no problem affirming Raich. A third, Roberts, has a narrower view of the commerce power, but nonetheless said nothing in his opinion to cast doubt on Raich. Even the fourth, Alito, joined an opinion in NFIB that also seemed to accept Raich. Based on NFIB, it seems fair to say that between six and eight justices support Raich. Only Thomas is clearly opposed — and no one joined his hardcore dissent in NFIB.
With solid support still on the Court for Raich, it does not seem that any major rollback of federal power is in the offing.
But how about some more modest nibbling around the edges?
In the lead opinion, Roberts seems to establish an activity/inactivity distinction:
The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . .
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. (2012 WL at *16-17)
There is language in the joint dissent to the same effect.
This certainly opens the door to constitutional challenges to federal crimes of omission, at least when the Commerce Clause is the purported constitutional authority for the statute in question. Criminally enforceable reporting requirements, e.g., in the environmental field, come to mind as potentially vulnerable targets.
But I suspect the courts will find ample ground for distinguishing NFIB.
For one thing, the novelty of the individual mandate also gets a lot of play in the Roberts opinion. Note, for instance, this language near the start of the Commerce Clause discussion:
Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product. Legislative novelty is not necessarily fatal; there is a first time for everything. But sometimes “the most telling indication of a severe constitutional problem . . . is the lack of historical precedent” for Congress’s action. (*15, citation omitted)
Or consider Roberts’s recap of the Commerce Clause analysis near the end of the opinion:
Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. (*29)
Given such an emphasis on novelty, which has echoes in the joint dissent, it should be easy to distinguish more well-established types of criminal liability for inactivity, such as failing to make required reports to the government.
Then, too, there are other ways in which the Roberts opinion muddies the activity/inactivity distinction.
As many critics have noted, “inactivity” can often (always?) be recharacterized as “activity,” and the government indeed attempted to do so in NFIB. The government’s theory was that the individual mandate regulates, not the failure to purchase health insurance (inactivity), but the way that individuals pay for the health care that they will inevitably need to receive (activity). Roberts’s response? “The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government.” (*20) This suggests that activity vs. inactivity should not be regarded as a bright-line distinction, but as a question of “proximity and degree,” which should give courts much flexibility to distinguish NFIB in future cases.
Consider, too, the lead opinion’s analysis of the Necessary and Proper Clause. This Clause gives Congress the authority to enact laws that are “necessary and proper” in aid of the exercise of enumerated powers, such as the power to regulate interstate commerce. The Clause is thus commonly understood to widen Congress’s authority beyond what it could do under the Commerce Clause standing alone, but the scope of this additional authority has never been precisely defined. The lead opinion does nothing to clear things up. Roberts acknowledges that the Necessary and Proper Clause permits “exercises of authority derivative of, and in service to, a granted power” — Raich is cited as an illustration — but concludes that the individual mandate does not qualify because it “would work a substantial expansion of federal authority.” (*21-22) Again, with such uncertain and manipulable categories, courts have much room in future cases to uphold other statutes regulating “inactivity.” One imagines, for instance, that reporting requirements can typically be characterized as being “in service to” a permissible regulation of some activity or other; without the requirement, a wider regulatory regime would be “substantially undercut,” as in Raich, where the inability to regulate wholly intrastate marijuana production would have “substantially undercut” Congress’s regulation of interstate marijuana markets. (*22)
To be sure, these portions of the Roberts opinion were not formally joined by any other justices, but four other justices (Ginsburg, Breyer, Kagan, and Sotomayor) joined in an opinion that seemed to embrace the expansive pre-Lopez view of the Commerce Clause. If Roberts is willing to uphold any statute in the future under the Commerce Clause, he is almost sure to be joined by at least these four colleagues.
Even the conservative joint dissent, as distinguished from the solo Thomas dissent, preserves plenty of wiggle room to distinguish NFIB in future cases. Consider the Necessary and Proper analysis. Again, the joint dissent does not criticize or question Raich, but instead tries to distinguish it. How? First, the “prohibition of growing . . . and of possession [of marijuana] . . . did not represent the expansion of the federal power to direct into a broad new field.” (*76) Again, the theme of novelty emerges here. But the federal government has been deeply involved in the “field” of health care for decades; how the relevant “field” is defined for these purposes is obviously manipulable. Second,
The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. . . .
With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. (*76-77)
This is simply a naked policy judgment, and by no means self-evidently correct. Is it really true that the ban on intrastate compassionate use is more “necessary” to “effectively” achieve the government’s policy objectives than is the individual mandate? To be convinced of that, I would need more than just the bare assertion of four justices.
So what will happen in the next commerce power case? Based on the joint dissent, it seems that the answer may depend on the opinion of the justices as to whether there are “practicable” and “effective” alternatives to the challenged law. Again, this seems a quite manipulable standard that leaves courts with considerable discretion to distinguish NFIB and uphold other statutes in the future.
The real lesson of Raich, I think, is that the Court does not have the stomach to overturn (or even marginally undercut the effectiveness of) well-established, important federal regulatory regimes, such as the marijuana prohibition. Lopez took on a very different sort of target, a new and largely symbolic gun-control law. United States v. Morrison did essentially the same thing in overturning a portion of the Violence Against Women Act.
NFIB follows the same pattern, with five justices finding another new statutory provision, the individual mandate, to be beyond the commerce power. This pattern puts into a new light the frequent characterizations in the NFIB opinions of the individual mandate as “novel” and “unprecedented.”
To be sure, the individual mandate is not chiefly a symbolic law in the way that the Gun-Free School Zones Act and VAWA were, but nor was it yet an implemented law around which people were organizing their lives in important ways. In that sense, striking down the individual mandate would indeed have a symbolic character — there would be little immediate, real-world impact.
And, of course, Roberts’s Commerce Clause analysis was even more fully symbolic in another sense: since he was going to uphold the individual mandate as a tax anyway, his castigation of the statute was a true “freebie.”
Bottom line: don’t count on any of the justices but Thomas to vote on Commerce Clause grounds against any established, practically signficant federal criminal statute.