Congress' authority to enact FDR's New Deal, Civil Rights legislation and environmental protections is all rooted in the Commerce Clause, a little 16-word line in the Constitution with big consequences. Not only does the Commerce Clause undergird the vast majority of federal laws, it was the Framers' primary response to the plague of states' rights that doomed the Articles of Confederation. Despite states-rights advocates losing battles to curb federal power in the Constitutional Convention, the Civil War, ending the Depression and LBJ's Great Society, President Barack Obama's signature domestic policy is being seized as another opportunity to chip away at this fundamental pillar in America's experiment in self-governance. The Affordable Care Act, like most federal legislation, is premised on Congress' power to regulate "interstate commerce," the definition of which is presently under a second layer of review by federal courts considering the Act's constitutionality. District courts took the first pass at determining whether the law's individual insurance mandate is permissible as a regulation of interstate commerce. There, the score was three-to-two, with every Democratic appointee to the bench upholding the law, and both Republican-appointed judges finding it unconstitutional. So much for the myth of the apolitical judiciary. Before Obamacare winds up at the Republican-dominated Supreme Court, it is undergoing appellate review in at least three circuit courts of appeal. In a hearing before the Fourth Circuit last month, the administration lucked out with a three-judge panel composed entirely of Democratic appointees, including two nominated by Obama himself. Yesterday's hearing before the Sixth Circuit took place before judges appointed by Bush I, Bush II and Carter, respectively. Perhaps the final court to entertain such a challenge before the Supremes will be the Eleventh Circuit next week, where the randomly selected panel includes appointees by Bush I and Clinton, as well as a third judge nominated to the trial court by Reagan, but elevated to the appellate bench by Clinton. Opinions by the Fourth Circuit (three D's, zero R's), Sixth Circuit (one D, two R's) and Eleventh Circuit (one D, one R, one bipartisan) may arrive as soon as the end of this summer. Inevitably, the loser in each case will appeal to the Supreme Court, which takes any case that four of the nine justices deem fit for review. While the Supremes grant review to a very small percentage of the appeals they receive, the novel question of whether Congress bears the authority to mandate individuals to purchase insurance, as well as the divided response to the question in lower courts, suggests that review is likely. The Supreme Court under Chief Justice William Rehnquist ushered in the first era of constraining Congress' commerce powers in six decades. Under Chief Justice John Roberts, a clerk of Rehnquist's and one of his pallbearers, the trend appears likely to continue. As with many divisive cases at the Roberts Court, however, Justice Anthony Kennedy seems positioned between eight evenly divided partisans, prepared to cast the deciding vote. Almost uniformly, Kennedy loyally voted with Rehnquist's conservative majority in a string of anti-Commerce Clause cases. In one key case, however -- Gonzales v. Raich -- Kennedy joined the left wing of the Court in recognizing that the Commerce Clause empowered Congress to prohibit interstate marijuana distribution. (Justice Antonin Scalia also joined the liberals in Raich, but did so tepidly, with a concurring opinion joined by no other justice.) While elegant arguments exist for Kennedy voting this way or that way, such predictions are a fool's errand. The only certainty one should embrace is that there is much more at stake than landmark healthcare legislation. This case is not a war over dignity, opportunity and access to healthcare, so much as it is a battle over the structure and character of our Constitution. May the side that prevailed in the battles of 1787, 1865, 1937 and the 1960's do so once more.
