GOP Wants an Activist Kagan on Congress' Commerce Powers

      Senate Judiciary Committee Republicans latched on to one more issue last week [July 20] to use against Supreme Court nominee Elena Kagan: the Constitution’s Commerce Clause. But the issue puts Republicans in the contradictory position of begging Kagan, if confirmed, to be a judicial activist and limit the power of Congress to exercise one of the most important of the enumerated powers written into the Constitution 200 years ago.
      In the hearing and in written response to follow-up questions, Kagan correctly stated current Supreme Court case law regarding Congress’ power to regulate interstate and foreign commerce. “The Commerce Clause has been understood to give Congress wide authority in this area, that the general view has been that regulations affecting interstate commerce primarily are the prerogative of Congress and not of the courts, that courts ought to defer,” she told Arizona’s John Kyl on the last day of the hearing.
      As she explained in her written response, decisions by the Rehnquist Court in the 1990s limit Congress’ power to use the Commerce Clause to regulate non-economic activity that has no substantial effect on interstate commerce. And she noted that another Rehnquist Court decision limits Congress’ power to pass laws enforcing the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
      Those qualifications were not enough to satisfy Alabama’s Jeff Sessions, the committee’s ranking Republican. As he wrote in an op-ed in USA Today on the eve of the committee’s vote, “Ms. Kagan was unable to identify any constitutional limits on the government's power to control people's economic decisions.”
      The question arises in the specific context of President Obama’s hard-fought victory in winning congressional approval of a landmark health insurance reform. No Republican voted for the final bill, and the ink was barely dry on the law when attorneys general in red states filed constitutional challenges.
      The challengers are claiming that the health insurance mandate, the linchpin of the plan, exceeds Congress’ power under the Commerce Clause. They also claim that the law improperly interferes with states’ rights under the Tenth Amendment. Most but not all legal scholars give the challenges little chance of succeeding.
      Historically, the Supreme Court indeed took a narrower view of Congress’ powers under the Commerce Clause. In the late 19th and early 20th centuries the court construed the word “commerce” narrowly to exclude manufacturing. On that basis, for example, the court struck down Congress’ first attempt to prohibit child labor. Later, during the New Deal, the court again relied on a restrictive definition of commerce to strike down President Franklin D. Roosevelt’s National Recovery Administration and his coal-industry rescue plan.
      The court’s decisions were out of touch with economic reality and public opinion. Even before FDR’s ill-conceived “court-packing” plan, one of the justices, Owen J. Roberts, began to have doubts about the out-of-date doctrine. Then in May 1937 he provided the famous “switch in time that saved nine” to uphold the National Labor Relations Act under a broader definition of Congress’ power to regulate interstate commerce.
      Ever since, the court has understood Congress’ Commerce Power over economic activities to be up to Congress, not the courts, to decide, just as Kagan said. Indeed, the court in 2005 upheld Congress’ power to go so far as to prohibit non-personal growing of marijuana for medicinal purposes because of the impact on the illegal market for marijuana. Granted three conservatives dissented, but significantly, Justice Antonin Scalia voted with the majority.
      The Roberts Court this year gave no indication of taking a narrower view of Congress’ powers. In United States v. Comstock the court upheld Congress’ power to authorize civil commitment of dangerous mentally ill sexual predators after their federal prison terms had expired. The case turned on the meaning of the Necessary and Proper Clause, not the Commerce Clause, but the 7-2 decision found no reason to limit Congress’ power to deal in practical terms with a practical problem. Significantly, Chief Justice John G. Roberts Jr. joined with the majority.
      The health care suit will take two years or more to reach the court. But, anticipating the Supreme Court showdown, Judiciary Committee Republicans tried to use Kagan’s confirmation hearing to establish grounds for requiring her to recuse herself from the eventual case. Kagan had already volunteered the standard assurance that she would recuse herself from any case in which she had participated or taken a significant role as solicitor general. So Republicans questioned her during the hearing and again in the post-hearing interrogatories about what role she had played in regard to the legislation. Kagan said she had given no formal opinion about its constitutionality and could recall attending only one meeting where the subject was mentioned.
      Sessions and other Republicans cited Kagan’s view of Congress’ Commerce Power as one of the reasons for voting against her almost in the same breath as they warned that she would be a “judicial activist” if confirmed. Judicial activism, of course, is in the eyes of the beholder, but Republicans might rightly be expected not to be so blatantly hypocritical in throwing the charge. Regardless, Republicans have a losing hand. By this week’s end, the Senate will have confirmed Kagan, and she will be on the bench when the court convenes in October.

On Gay Marriage, Judicial Modesty No Match for Flawed Pols

      This is a column about Robert Byrd, Bill Clinton, Anthony Kennedy, and Elena Kagan. But it’s mostly about gay marriage and the legal challenge to the Defense of Marriage Act, an anti-gay law signed by Clinton as president and likely to come before Kagan as the next Supreme Court justice.
      In his eulogy for Byrd, Clinton excused the longtime West Virginia senator’s membership in the Ku Klux Klan in the 1930s as a politically motivated campaign decision. There are no perfect people, Clinton said, certainly no perfect politicians.
      Clinton spoke from personal experience with the ethical lapses that can be induced by political ambition. With the 1996 presidential election looming, Clinton twice signed into law politically treacherous measures sent to him by the Republican-controlled Congress.
      One of the bills, the Antiterrorism and Effective Death Penalty Act, cut back as far as Congress could on the rights of death row inmates and other prisoners to use federal habeas corpus to challenge the constitutionality of state court convictions or sentences. The other, the Defense of Marriage Act, did everything Congress could to stop what was then only the potential recognition of marriage rights for same-sex couples.
      Clinton had to know of the legal and policy doubts attending both measures. But he must also have feared that if he vetoed either bill, a second term in the White House could fall victim to Republican attack ads depicting him as against capital punishment or against “traditional marriage.”
      Coincidentally, only a few months before Clinton signed DOMA, the Supreme Court had its own encounter with an anti-gay law: a Colorado initiative passed in 1992 that barred either the state or local governments from passing laws to protect gays and lesbians from discrimination. The court ruled the measure unconstitutional in a 6-3 decision written by the Republican-appointed justice, Anthony Kennedy.
      The law had no “rational relationship to legitimate state interests,” Kennedy wrote in Romer v. Evans. The only reason for its enactment was “animus” toward gays. “It is not within our constitutional tradition to enact laws of this sort," he said.
      Seven years later, Kennedy wrote a second Supreme Court decision upholding gay rights. In Lawrence v. Texas, the court invalidated anti-sodomy laws on the ground that, just like the Colorado initiative, they had no rational explanation other than “moral disapproval” of homosexuality.
      A few months later, the Supreme Judicial Court of Massachusetts cited Lawrence in making the Bay State the first in the nation to recognize marital rights for gay men and lesbians. Since then, six other states and the District of Columbia have followed suit either by judicial decision or legislative enactment. But in two of those states, California and Maine, voters approved ballot measures to take away the newly recognized marriage rights for gays.
      With gay marriage now a reality, DOMA’s restrictions have started to bite. One part of the law provides that no state is required to recognize gay marriages entered into in another state. The other part, section 3, defines marriage for purposes of federal law as “one man and one woman” and thus denies same-sex couples any marriage-based benefits under federal law.
      There are more than 1,100 of them, ranging from the preferential tax treatment for joint filers to spousal health, retirement, and survivor benefits for federal employees. In passing the law back in 1996, members of Congress said gay marriage would be bad for children and bad for procreation itself. But Rep. Henry Hyde, R-Ill., was perhaps the most honest of the lawmakers when he said simply that the law embodied the prevailing “moral disapproval of homosexuality.”
      The Massachusetts-based Gay and Lesbian Advocates and Defenders (GLAD) assembled a lawsuit to challenge DOMA filed on behalf of legally married gay men and lesbians who were suffering concrete, financial harms because of the law: higher taxes or reduced health, retirement, or survivor benefits. In a 39-page decision this week [July 8], U.S. District Court Judge Joseph Tauro ruled that the law “violates equal protection principles.”
      Tauro, appointed long ago by a Republican president, Richard M. Nixon, cited Romer and Lawrence as his legal authority for his decision to strike down a law that he said had no believable justification other than to penalize legally married same-sex couples. “Irrational prejudice,” the judge wrote in Gill v. Office of Personnel Management, “plainly never constitutes a legitimate state interest.”
      Experts disagree about whether Tauro’s ruling, and a like decision in a companion case brought by the state of Massachusetts itself, will stand up on appeal. But it is certainly headed toward the Supreme Court. Kagan, a gay rights supporter in a previous life as Harvard Law School dean, is all but certain to win Senate confirmation within the next month to join the court as President Obama’s second appointee.
      In her confirmation hearing, Kagan stressed the limited role that courts play in the U.S. constitutional system and pledged to be a “modest” justice. But she also said that courts have an essential role to play in fulfilling the goal enshrined in the Constitution’s preamble “to secure the blessings of liberty to ourselves and our posterity.” In a world of imperfect politicians, judicial modesty may be inadequate to the task.