SCOTUS Preview Part II: Clement’s Misleading Brief

The following is the second in a four part series previewing the four issues facing the Supreme Court in next week’s Affordable Care Act arguments.

The highest profile issue in this lawsuit is unquestionably the challenge to the Affordable Care Act’s requirement that nearly all Americans carry insurance or pay slightly more income taxes. No one, however, should confuse the fact that the law’s opponents have run an effective PR campaign touting the idea that this provision is unconstitutional with the reality that it is both clearly and unambiguously constitutional. In the words of Judge Laurence Silberman, a leading conservative judge who once received the Presidential Medal of Freedom from George W. Bush, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.”

Given that there really isn’t a case that the ACA violates our actual Constitution, attorney Paul Clement’s brief attacking the law pursues an unusual strategy — trying to convince the justices that neither our real Constitution nor the nearly 200 years of precedent interpreting Congress’ power to regulate actually exist. As a new Center for American Progress issue brief (written by an author familiar to the readers of this blog) explains, Clement’s entire case falls apart unless the justices accept several entirely fabricated claims about the Constitution and longstanding precedent. Here are just two examples:

Bad Textualism

The Constitution permits Congress to “regulate commmerce . . . among the several states,” and that’s really all you need to know about why the Affordable Care Act is constitutional — the ACA regulates 1/6 of the nation’s economy, and it concerns a nationwide commercial market for health care. Clement tries to get around this problem by asking the justices to read the word “regulate” very narrowly to not allow Congress to to require “individuals to engage in commercial transactions,” but his reconception of the Constitution runs head long into text and history.

In 1824, Chief Justice John Marshall wrote in the very first case to interpret Congress’ power over Congress that there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Marshall explained, the power to “regulate” something “implies in its nature full power over the thing to be regulated.” The Affordable Care Act regulates trade in health care services, and under Marshall’s rule, Congress has “full power” over all forms of trade—including the power to require people to take certain actions within the health care market. Simply put, Marshall was one of the ratifiers of the Constitution itself, so he has far more credibility to tell us what it means than a conservative advocate like Clement.

Hyperbolic Claims

Unsurprisingly, Clement also revives the plaintiffs’ false claim that, if the Affordable Care Act is upheld, that somehow means that Congress can do whatever it wants. The truth is that the Supreme Court has long maintained that nationwide economic regulation — such as a law regulating the entire national health care market — fits comfortably within Congress’ power, but non-economic laws are far more suspect. This is why the United States lists “family law, general criminal law, or education” as examples of laws that exceed Congress’s power to regulate commerce in its brief. Unlike the Affordable Care Act, these laws are not economic in character, and thus fall beyond Congress’ authority over commerce.

In other words, Clement’s hyperbole has little basis in reality. There are all kinds of laws that exceed Congress’ authority — it’s just that none of them are called the Affordable Care Act.

To learn more about the wild departures Clement wants the justices to make from the Constitution’s text and longstanding Supreme Court precedent, read the entire issue brief here.