After President Obama called out conservatives for professing to oppose activist judges while simultaneously rooting for the Supreme Court to strike down the Affordable Care Act, the conservative media have spent days straining to argue that it would be perfectly legitimate for the Court to rule the Affordable Care Act unconstitutional. Today, Fox News' Jon Scott and his guest Curt Levey tried yet again, suggesting that if the Court strikes down the law, it would be acting in accordance with "fairly recent" precedent.
But Scott and Levey are wrong: It has been more than 75 years since the Supreme Court struck down federal economic legislation on the grounds that Congress did not have the power to pass that legislation under the Commerce Clause.
Scott asked: "Hasn't the Supreme Court already in fairly recent history overturned rulings of Congress that it found to be unconstitutional?"
Levey, the executive director of the Committee for Justice, responded: "Yes it did, and under the Commerce Clause it did so. In '95, the Gun Free School Zones Act and then in about the year 2000, part of the Violence Against Women Act."
The Affordable Care Act indisputably regulates economic activity. The individual mandate at the heart of the Supreme Court case requires people to obtain health insurance. Overall, the law regulates how health care and insurance are provided and paid for. And, while the Supreme Court regularly struck down federal regulation of economic activity in the mid-1930s as an improper exercise of Congress' Commerce Clause power, it has not done so since.
Indeed, in both cases cited by Levey, the Court made clear that it was striking down a law regulating noneconomic activity. In the Gun Free School Zones Act case, United States v. Lopez, then-Chief Justice William Rehnquist said in his majority opinion:
Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.
[The law being challenged] is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms.
In the Violence Against Women Act case, United States v. Morrison, Rehnquist's majority opinion also made clear that the Court was striking down a regulation of "noneconomic activity":
But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case.
While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.
Furthermore, the Court has made clear that when Congress does regulate economic activity, its power is very broad indeed. The Court has upheld federal regulations preventing a farmer from growing wheat for his own consumption, because the rules at issue involved regulation of the wheat market. It has also upheld a federal law that had the effect of banning a person growing marijuana for his own medicinal consumption, because the law involved regulation of the marijuana market.
So, as much as Scott and Levey want you to believe otherwise, if the Supreme Court were to find part of the health care law unconstitutional, it would be a major break with 75 years of the Court's practice.