28 March 2012

Highlight from Yesterday's SCOTUS Arguments

MR. CARVIN: [...] So, Justice Kennedy, even if we were going to create exceptions for people that are outside of commerce and inside of commerce, surely we'd make Congress do a closer nexus and say, look, we're really addressing this problem; We want these 30-year-olds to get catastrophic health insurance.

And not only did they -- they deprived them of that option. And I think that illustrates the dangers of giving Congress these plenary powers, because they can always leverage them. They can always come up with some public policy rationale that converts the power to regulate commerce into the power to promote commerce, which, as I was saying before, is the one that I think is plenary.

: Mr. Carvin, a large part of this argument has concerned the question of whether certain kinds of people are active participants in a market or not active participants in a market. And your test, which is a test that focuses on this activity/inactivity distinction, would force one to confront that problem all the time.

Now, if you look over the history of the Commerce Clause, what you see is that there were sort of unhappy periods when the Court used tests like this, direct versus indirect, commerce versus manufacturing. I think most people would say that those things didn't really work. And the question is, why should this test, inactive versus active, work any better?

MR. CARVIN: The problem you identify is exactly the problem you would create if you bought the government's bogus limiting principles. You'd have to draw a distinction between the insurance industry and the car industry and all of that, returning to the Commerce Clause jurisprudence that bedeviled the Court before the 1930s, where they were drawing all these kinds of distinctions among industries, whereas our test is really very simple. Are you buying the product or is Congress compelling you to buy the product? I can't think of a brighter line.

And again, if Congress has the power to compel you to buy this product, then obviously they have got the power to provide you -- to compel you to buy any product, because any purchase is going to benefit commerce, and this Court is never going to second-guess Congress's policy judgments on how important it is this product versus that product.

JUSTICE ALITO: Do you think that drawing a line between commerce and everything else that is not commerce is drawing an artificial line, like drawing a line between commerce and manufacturing?
MR. CARVIN: The words "inactivity" and "activity" are not in the Constitution. The words "commerce" and "noncommerce" are. And again, it's a distinction that comes, Justice Kagan, directly from the text of the Constitution.

The Framers consciously gave Congress the ability to regulate commerce, because that's not a particularly threatening activity that deprives you of individual freedom.

If you were required, if you were authorized to require A to transfer property to B, you have, as the early cases put it, a monster in legislation which is against all reason and justice, because everyone intuitively understands that regulating people who voluntarily enter into contracts in setting changing conditions does not create the possibility of Congress compelling wealth transfers among the citizenry. And that is precisely why the Framers denied them the power to compel commerce and precisely why they didn't give them plenary power.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Carvin.