Yesterday, the Supreme Court refused to hear United States v. Alderman, a potentially important Commerce Clause case [HT: Josh Blackman]. In Alderman, the Ninth Circuit Court of Appeals had upheld the constitutionality of a federal statute that banned the possession of body armor by felons. The Ninth Circuit relied on the Supreme Court’s 1977 decision in Scarborough v. United States, which it interpreted as allowing Congress to forbid the possession of any item that had ever passed in interstate commerce in any way. Justice Clarence Thomas wrote a stinging dissent from the decision to deny certiorari, which was joined by Justice Scalia:
Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining other Circuits, the Court of Appeals for the Ninth Circuit has decided that an “implic[it] assum[ption]” of constitutional-ity in a 33-year old statutory interpretation opinion“carve[s] out” a separate constitutional place for statutes like the one in this case...
Further, the lower courts’ reading of Scarborough, by trumping the Lopez framework [established by the Supreme Court in 1995], could very well remove any limit on the commerce power. The Ninth Circuit’s interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw “the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.” United States v. Bishop, 66 F. 3d 569, 596 (CA3 1995) (Becker, J., concurring in part and dissenting in part). The Government actually conceded at oral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce. Such an expansion of federal authority would trespass on traditional state police powers.
I agree with most of Thomas’ critique of the Ninth Circuit opinion, and I too wish that the Court had taken the case and reversed it. As he points out, Scarborough was a statutory interpretation case that did not address the constitutional limits to Congress’ power. The Scarborough decision was interpreting what Congress did in a 1968 statute restricting firearm possession by felons, not whether what it did was constitutional. As Justice Thurgood Marsall explained in his opinion for the Court, “The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce” [emphasis added]. Moreover, as Thomas also explains, the lower courts’ interpretation of Scarborough is inconsistent with more recent Supreme Court Commerce Clause decisions.
What does the Supreme Court’s refusal to hear Alderman mean for future Commerce Clause cases, such as the current litigation over the Obama health care plan’s individual mandate? Probably not much. The Court refuses to take the vast majority of petitions for certiorari, including many that focus on important issues. So yesterday’s decision doesn’t necessarily mean that the majority of the justices agree with the Ninth Circuit. It’s possible, instead, that they plan to clarify the Court’s Commerce Clause jurisprudence in more detail once the individual mandate cases get to them, and don’t want to take any other Commerce clause cases until then. Or maybe they simply don’t want to address the Scarborough issue until there is a circuit split on the subject.
Even if the Court majority does some day endorse the Ninth Circuit’s logic, that still would not dispose of the mandate case. After all, the Ninth Circuit relied on the idea that the Commerce Clause gives Congress the power to ban possession of any good that has ever crossed state lines or been sold in interstate commerce. By contrast, the individual mandate regulates the condition of not having health insurance, which does not require the possession of any good – whether purchased in interstate commerce or not. Indeed, the mandate doesn’t regulate any activity of any kind.
Congress could have structured the mandate in such a way as to mirror the body armor statute upheld by the Ninth Circuit in Alderman. For example, it could have passed a law forbidding anyone who has not purchased health insurance to possess any medicine that had ever been sold in interstate commerce or crossed state lines. But that’s not what it chose to do in the health care bill, probably for political reasons. The hypothetical statute I describe would have been widely denounced as cruel to the poor and uninsured. It probably could not have gotten through Congress, especially in light of the narrow margin by which the House passed the less unpopular bill that actually did get enacted.
That said, I do think that the Ninth Circuit’s approach is troubling for the reasons noted by Thomas. It doesn’t quite “remove any limit on the commerce power,” as he suggests. But it does interpret that power far more broadly than can possibly be justified by the text of the Constitution. Hopefully, the Court will overrule it in a future case.