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JUSTICE KENNEDY, THE ?COMMERCE CLAUSE? AND THE CONSTITUTIONALITY OF HEALTH REFORM.

By Greg Piche'

There is a lot of ?buzz? in the media and on capital hill these days with Sen.Orrin Hatch and a number of allies aligned to challenge the constitutionality of the Obama Administration's Health Care Reform bill pending reconciliation in the Congress. The principal focus of the attacks seem to be the assertion that the federal government lacks the power under the ?commerce clause? to regulate purely intrastate activity that have little or no impact on commerce among the states and the assertion that  the federal government cannot legally force and individual to purchase health insurance.  Justice Kennedy as usual is likely to be the swinging gate that decides this issue in the Supreme Court.

The issue is one of balance in the relationships of the states with the federal government. The Rehnquist Court sought to restore what it believed to be a disruption of that balance in two cases where federal statutes were ruled beyond the scope of permissible federal regulation under power of the federal government to regulate commerce among the states.  Justice Kennedy was on the swing in each of those cases. The first, United States v. Lopez, 514 U.S. 549 (1995) involved the prosecution of Alfonzo Lopez Jr. under the federal Gun-Free School Zone Act of 1990. Lopez came to school with a .38 revolver and 5 live rounds of ammunition. The court held that the Act went beyond the authority of the federal government to regulate commerce and was purely a matter of intra-state interest. It rejected the government?s argument that the fear of violence in the schools would engender an indirect impact on tourism and other interstate activity.

Justice Kennedy joined with Justice O?Conner in a reluctantly  concurring opinion.

The history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power. That history gives me some pause about today?s decision, but I join the Court?s opinion with these observations on what I conceive to be its necessary though limited holding.

Justice Kennedy?s concerns are important insights into his thinking on Commerce Clause jurisprudence.

The history of our Commerce clause decisions contains at least two lessons of relevance to this case. The first, as state at the outset, is the imprecision of content-based boundaries used without more to define the limits of the Commerce Clause. The second, related to the first but of even greater consequences, is that the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point.

Justice Kennedy?s could not find sufficient connection with the commercial concerns that are at the core of the commerce clause analysis to justify the federalization of local school ordinances ( or ?ordinance? so to speak).

Absent a stronger connection or identification with commercial concerns that are central to the Commerce Clause, that interference contradicts the federal balance the Framers designed and that this Court is obliged to enforce.

Justice Kennedy again sided with the majority in United States v. Morrison, 529 U.S. 598 (2000),  which ruled the Violence Against Women Act of 1994, unconstitutional as being an authorized federalization of sexual assault crimes.

Notwithstanding those two cases embraced by the right, Justice Kennedy swung the other way in  Gonzalez v. Raich, 545 U.S. 1 (2005), declining to find the federal Controlled Substances Act an unconstitutional intrusion upon California?s Medical Marijuana law. The majority held that while the use of medical marijuana in California was conceptually and intrastate activity, it found that unless the federal government were able to control the interstate activity the federal regulation of marijuana was unsustainable. Here the court was dealing with ?commerce? of a sort and the case was remarkably similar to a 1942 case representing a important benchmark in the evolution of Commerce Clause analysis. In Wickard v. Filburn, 317 U.S.111 (1942), a federal prosecution of a wheat farmer for violating a federal law restricting wheat production, was upheld. There the farmer claimed that he was growing wheat for his personal consumption. The court decided the case based on the argument that the farmer?s consumption of his own wheat would affect larger markets because he would not be purchasing wheat in the larger market for his consumption.

So where is Justice Kennedy likely to stand on health care reform?  The ?constitutionality ? uproar seems more political that legal.  States have long forced individuals to purchase insurance for their automobiles. The federal government can require it for health care if it has the authority under the commerce clause.  The issue here is the regulation of a commercial enterprise, not a state criminal statute with essentially local impact.  In some respects there are few commercial enterprises that have as large an impact on the movement of boats, planes and trains in interstate commerce as health care, not only in its intrinsic industry, but its collateral effect on all industry in the United States.  Justice Kennedy will side with the Obama Administration.

Full post as published by Healthcare Law Blog on January 05, 2010 (boomark / email).