Supreme Court: Did it just hint at stance on a health-care law challenge?

The Supreme Court refused to take up a case examining Congress's authority under the commerce clause, a key issue in a legal challenge to Obama's health-care law. Two justices dissented.

In a case with potential implications for legal challenges to the Obama health-care reform law, the US Supreme Court on Monday refused to examine whether Congress overstepped its authority when it made it a federal crime for a convicted felon to possess a bullet-proof vest.

The key question in Alderman v. US was whether there are limits to Congress’s ability under the Constitution’s commerce clause to outlaw a local, intrastate activity like wearing body armor.

Legal challenges to the health-care reform act are asking the judiciary to enforce strict limits on Congress’s commerce clause power. At issue in those challenges is whether Congress has the power under the commerce clause to require every American to purchase a government-approved level of health insurance.

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Had the high court taken up the Alderman case, it would have signaled a willingness by the justices to closely examine what limits, if any, apply to congressional power under the commerce clause.

The issue has been a contentious one at the Supreme Court since 1995 when the justices handed down their first decision in 50 years limiting the sweep of Congressional authority under the commerce clause. Analysts had been watching the Alderman case for a hint of which direction the justices might take on the broader commerce clause question – and perhaps on the health care case.

'Nullification of our recent ... jurisprudence'

“Today, the court tacitly accepts the nullification of our recent commerce clause jurisprudence,” Justice Clarence Thomas wrote in an eight-page dissent joined by Antonin Scalia.

Thomas said the lower court decision in the Alderman case “could very well remove any limit on the commerce power.”

It is impossible to know with any precision why most of the justices declined to hear a particular case.
But the fact that only two of the high court’s nine justices would agree to hear the commerce clause case may portend a Supreme Court retreat from what was once called the federalism revolution. Such a retreat would ensure smooth sailing ahead at the nation’s highest court for the health-care law.

The Supreme Court does not explain the results of its private conferences where the justices discuss and vote on future cases. The only public announcements are lists of cases that have been granted or dismissed, or dissents and concurrences issued by a justice.

“This court has consistently recognized that the Constitution imposes real limits on federal power,” Thomas wrote in his dissent.

But he added, “The Ninth Circuit’s interpretation [in the Alderman case] seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines.”

Thomas added: “Congress arguably could outlaw the theft of a Hershey’s kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled … to the store from Hershey, Pennsylvania.”

Can Congress criminalize vest possession?

The issue in the Alderman case was whether Congress had the power to criminalize possession of a bullet-proof vest by a convicted felon based solely on the fact that at some point the vest had crossed state lines.

Cedrick Alderman was arrested in 2005 by Seattle police on suspicion he was selling cocaine. Police set up an undercover operation to try to buy drugs from Mr. Alderman.

As Alderman walked toward the arranged meeting place, police arrested him. A search revealed no drugs or weapons. Police found a small quantity of marijuana in his car, but no cocaine. Police also discovered that Alderman was wearing a bulletproof vest.

There is no law in Washington State against possessing body armor, so local authorities turned the case over to federal prosecutors. They charged Alderman with violating the federal law barring convicted felons from possessing bulletproof vests.

Alderman’s lawyer urged the federal judge to dismiss the indictment on grounds that the law exceeded Congress’s power under the commerce clause. The judge refused. A panel of the Ninth US Circuit Court of Appeals affirmed the judge’s ruling by a 2-to-1 vote.

The central question was whether the federal law is a legitimate regulation of interstate commerce or is instead an example of Congress usurping police powers generally reserved to state and local governments.

The federal authority to pass such a law is extended to Congress under the commerce clause, which empowers Congress to regulate interstate commerce or activities that substantially effect interstate commerce.

Vest crossed state lines

Congress was deemed to have power to regulate Alderman’s wearing of a bulletproof vest because three years earlier the California manufacturer sold the vest to a distributor in Washington State.

Alderman himself did not cross state lines with the vest. Nor did he purchase the vest from an out-of-state source.

Alderman’s conviction was upheld by the Ninth Circuit because the appeals court found that at some point his bulletproof vest had traveled in interstate commerce – making it a valid object of federal regulation.

Alderman’s lawyer, David Goldberg, argued in his brief to the court that such a minimal connection to interstate commerce is not permitted under Supreme Court decisions since 1995 that have sought to limit Congressional power when it intruded impermissibly into areas reserved to state and local governments.

Under those newer decisions, the commerce clause authorizes national lawmakers to regulate the channels of interstate commerce, as well as activities that substantially effect interstate commerce. They require more than just the movement of a particular product at some point across state lines.

Mr. Goldberg argued that the wearing of a bullet proof vest raises issues of local concern. There is no substantial relation to a regulation of interstate commerce as required under more recent Supreme Court precedents, he said.

Solicitor General Neal Katyal disagreed with Goldberg’s assessment.

The law “directly regulates the interstate market in body armor by eliminating a dangerous and harmful segment of that market, namely purchases or other acquisitions by violent felons,” Mr. Katyal wrote in his brief urging the court not to take up the case. “Such regulation of interstate markets is squarely within Congress’s authority.”

In his dissent, Justice Thomas said the lower courts have “cried out for guidance from this court” on the commerce clause issue. He added: “This court has a duty to defend the integrity of its precedents.”

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