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Thursday, June 28, 2012

Heart of Atlanta, Roberts style

Chief Justice Roberts wrote only for himself on the Commerce Clause and Necessary and Proper issues, explaining why the law was invalid on those grounds before turning to taxing issue and ultimately upholding the mandate. The key to Roberts's analysis is that the mandate "reads more naturally as a command to buy insurance than as a tax." It therefore had to first be analyzed (and rejected) as a Commerce enactment. It only could be analyzed as a tax through a saving construction, which only is imposed if the law would otherwise be unconstitutional. Only after that saving construction, the Court then could perform the Taxing Clause analysis.

But because constitutional invalidity must come before the saving construction which must come before the Taxing analysis, making the first step necessary to the judgment. And thus the confusion over whether this is dicta and whether there is a five-vote majority for the Commerce analysis.

In Heart of Atlanta Motel v. United States, SCOTUS upheld the public accommodations provisions in Title II of the Civil Rights Act of 1964. Congress had pointed to and discussed two power sources during the legislative debates--Commerce and § 5 of the Fourteenth Amendment. But the latter would have required reconsideration of The Civil Rights Cases, which held that Congress could not regulate non-state conduct through § 5. The Court upheld Title II on Commerce grounds, without discussing (or feeling it necessary to discuss) § 5.

This was despite the following: (379 U.S. at 257)

Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.

But under the approach Chief Justice Roberts took today, the Heart of Atlanta analysis arguably would have had to go as follows (with apologies to NFIB, slip op. at 44):

[Title II is concerned with a moral and social wrong.] The statute reads more naturally as [a way to ensure the Equal Protection of Laws] than as a [regulation of commerce among the several states] and I would uphold it as a way to ensure Equal Protection if the Constitutional allowed it. It is only because [§ 5 of the Fourteenth Amendment] does not authorize such a [law] that it is necessary to reach the [Commerce] power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that [Title II] can be interpreted as a regulation of [commerce]. Without deciding the [§ 5] question, I would find no basis to adopt such a saving construction.

Now, perhaps that would not have been a bad thing, as it would have forced a § 5 analysis and we might have gotten a very different analysis and conclusion than we got 25 years later in United States v. Morrison.

Still, Congress often legislates pursuant to multiple power sources or pursuant to a power source and in light of an outside limitation on power. Are there other instances of the Court insisting that a law must be "read more naturally" as derived from one power than another, such that that power had to be analyzed first and becomes essential to the judgment, even if the ultimate conclusion is to uphold the statute on that other ground? It seems to me that the ordinary (and better) process is to read the statute and accept Congress' asserted power source(s) and evaluate the law under all that may apply. And it ordinarily is (and should be) enough to find one power source on which to uphold it; its invalidity under any other source should not be necessary or relevant to the judgment.

Posted by Howard Wasserman on June 28, 2012 at 05:44 PM in Constitutional thoughts, Howard Wasserman, Law Review Review | Permalink


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Maybe not exactly the same thing, but this issue makes me think of Prima Paint Corp v. Flood & Conklin Mfg, 388 U.S. 395 (1967). In that case the Supreme Court explained that the Federal Arbitration Act is justified as an exercise of Congress's commerce power, rather than its pre-Erie power to create general law applicable in diversity cases [the FAA was enacted in 1925]. It seems pretty clear that the latter power is what Congress was relying on (as you say, the FAA might be "read more naturally" as deriving from that power). By finding the FAA supported by the commerce power instead, the Court saved the FAA from evisceration under Erie. What's interesting are the implications that follow from finding a statute justified under one Congressional power source rather than another. In the case of the FAA, the differences are great. Most notably, holding the FAA to be an exercise of the commerce power paved the way for the FAA to be applicable in state courts, which was arguably not the intention of the drafters. If a federal statute could be based on power X or power Y, and there are relevant differences between the implications of finding the statute supported by power X or power Y, does/should it matter whether Congress was relying only on power X or power Y? If what Congress intends is "We're enacting this statute under power X, and if power X is not sufficient, the law should be struck down rather than justified under any other power," must Congress make that clear? Does it really matter? Do different sources of Congressional power not generally have a different impact (the FAA example notwithstanding)?

Posted by: Roger Perlstadt | Jun 29, 2012 10:31:59 AM

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