Ten minutes after this post goes live, the nine justices will enter the Supreme Courtroom and begin the first of four hearings to decide the fate of the Affordable Care Act. If the justices follow the text of the Constitution, they will have no choice but to uphold the law. Under our founding document, Congress has the power to “regulate commerce . . . among the several states.” This, in the words of the very first Supreme Court decision to interpret these words, includes the “full power” over any “sort of trade” that concerns more than one state. So a law regulating nationwide trade in health care clearly qualifies.
To counter the clear thrust of the Constitution’s text, the law’s opponents argue that Congress has gotten too big for its britches. If Congress has the power to require people to carry health insurance, their argument goes, there will be no limit on it’s authority and any kind of law will qualify as a regulation of commerce. Of course, this is not true — the Supreme Court precedents correctly establish that non-economic laws such as federal murder, rape, assault, truancy or sexual morality laws are beyond Congress’ authority to regulate commerce — but it’s worth noting that the plaintiffs’ argument is not a new one. In fact, it is nearly 100 years old:
In our view the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus the act in a twofold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the federal authority does not extend. The far reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed.
These words conclude an 1918 case known as Hammer v. Dagenhart, which struck down a federal child labor law under a very similar theory to the one the Affordable Care Act’s opponents press today. Then, like now, conservatives feared that enabling Congress to fully exercise its authority over the nation’s commerce would enable Congress to do whatever it wants — and they convinced five of the Court’s nine justices to join them in this fear and steal away America’s ability to ban child labor.
It’s worth noting the the justices of this era were not exactly consistent in how they limited Congress’ commercial regulations. When Congress tried to protect the right of workers to unionize or to provide railroad workers with a degree of retirement security, the early Twentieth Century justices tossed these laws out. Yet, when mine owners invoked a federal law to suppress a mining union’s cutthroat tactics, the Court suddenly read Congress’ authority over interstate commerce very expansively.
The lesson of this experience is clear. When judges are allowed to ignore the text of the Constitution, they are free to read their own preferences into our founding document. Nearly a century ago, this meant that judges who preferred management to labor effectively created one constitution for corporations and another, inferior constitution for unions. Today, conservatives hope that the five justices who probably didn’t vote for President Obama will eradicate his signature accomplishment despite nothing in the Constitution granting them leave to do so.
Needless to say, this is a very dangerous game, and it is one that should scare the law’s opponents just as much as the law’s supporters. If judges have the power to ignore the Constitution’s text, then there truly will be no limits on the Supreme Court’s authority. And, unlike Members of Congress, justices of the Supreme Court are unelected and serve for life — so there will be no way to check the unlimited grant of power the Affordable Care Act’s opponent’s want to give these justices.