The conservative justices shake the Etch-a-Sketch -- twice

For supporters of the Affordable Care Act, the tea leaves after oral argument in the Supreme Court were bad enough. In recent days, though, worse omens have deepened the gloom, as the conservative justices have shown signs of clearing the conceptual decks  for a strike-down of the individual mandate at least.  Perhaps implicitly acknowledging that recent legal precedents suggest that the mandate is constitutional, they have indicated a new willingness to cast aside the judicial principle of stare decisis -- let the decision stand. In fact, in the past week, two justices have signaled a willingness not to let their own decisions stand.  And both those decisions have a bearing on the mandate's constitutionality.

First up is Scalia, who is soon to release a new book that has been reviewed by the New York Times. TPM's Sahil Kapur highlights the relevant section:

In Scalia’s new book, a 500-page disquisition on statutory construction being published this week, he says the landmark 1942 ruling Wickard v. Filburn — which has served as the lynchpin of the federal government’s broad authority to regulate interstate economic activities under the Constitution’s Commerce Clause — was wrongly decided.

According to an advance review in the New York Times, Scalia writes that Wickard “expanded the Commerce Clause beyond all reason” by deciding that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

Scalia himself relied on Wickard in his 2005 opinion in Gonzales v. Raich, concurring with a 6-3 majority that said Congress may, under the Commerce Clause, prohibit a licensed medical marijuana patient from growing pot for personal consumption even if it’s legal in the state. A central foundation for that sweeping federal power, the court declared, was Wickard.

At the time, Scalia emphatically agreed, writing in his concurring opinion that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

In his defense of the mandate, Solicitor General Donald Verrilli relied heavily on Scalia's explication in Rauch of the flexibility that the "necessary and proper" clause of the Constitution affords Congress in regulating interstate commerce.  Laurence Lessig explains why many Constitutional scholars thought, prior to oral argument, that Scalia would uphold the mandate:

Under Scalia's approach, the question of Congress's authority is not answered by asking whether the activity regulated is, or affects, interstate commerce. Though that clause only gives Congress the power to regulate "commerce among the several states," as Scalia said in Raich, Congress's power is supplemented by the Constitution's "Necessary and Proper Clause" power. That clause means that "Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce," at least if such regulation is "Necessary and Proper" to Congress' commerce power or to any other power granted the federal government. In other words, Congress can regulate an activity that is not interstate commerce so long as regulating it is "Necessary and Proper" to Congress' regulating interstate commerce. ..

Just as intrastate activities that don't substantially affect interstate commerce can be regulated, on Scalia's account, if "Necessary and Proper" to some commerce-clause end, so too should Congress have the power to regulate non-activities, so long as they are "Necessary and Proper" to some commerce-clause end.

Now look at Verrilli's syntactically rather awkward response in oral argument to Justice Alito's demand that he articulate a "limiting principle" for Congress's power to mandate product purchases:

JUSTICE ALITO: Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme?

GENERAL VERRILLI: We've got -

JUSTICEALITO: Is that it?

GENERAL VERRILLI: We've got -

JUSTICE ALITO: Is there anything more?

GENERAL VERRILLI: We got two and they are -- they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating -- is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It's like -- it's very much like Wickard in that respect. Very much like Raich in that respect ( p. 44).

The mandate is essential to the scheme; it keeps people from undercutting the scheme.  Pure Raich. More precisely, here is the same argument in Verrilli's reply brief:

This Court has made clear that Congress may act to address increased risks, attributable to the regulatory scheme itself, that the regulated class will engage in economic activity that undercuts the scheme--here, delaying the purchase of insurance until it is needed. Raich, 545 U.S. at 18-19; id at 37 &  n.2 (Scalia, J., concurring in the judgment( (Citing Wickard, 317 U.S. at 127-129); Lopez, 514 U.S. at 555-556; 558. Upholding the Act on the basis of that settled principle would not authorize Congress to treat the mere failure to purchase a commodity [such as broccoli] as activity undermining a larger scheme (p. 15).

Scalia's enumeration in his concurring opinion in Raich of Congress's power to regulate non-economic interstate activity if doing so is necessary to a scheme to regulate commerce was a clarification of the power afforded Congress in Wickard. In that case, the Court upheld Congress's power to prohibit a farmer from growing wheat for his own use, which might have undermined Congress's bid to regulate the price of wheat. Of Wickard, Scalia wrote in Raich, "This potential disruption of Congress’s interstate regulation, and not only the effect that personal consumption of wheat had on interstate commerce, justified Congress’s regulation of that conduct. Id., at 128—129. "

In 2004, Scalia famously noted in Ken Fosket's biography of Justice Thomas that  Thomas "doesn't believe in stare decisis, period..if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."  It would seem that Scalia has since radicalized himself.

The second key erasure of relevant precedent occurred in Justice Alito's decision released this past Thursday in Knox v. Service Employees.  In this case, as a Times editorial condemning the sweeping decision summarizes,  

The court’s five conservatives ruled that in 2005, Local 1000 of the Service Employees International Union should have sent a notice to all nonmembers it represented when it imposed a temporary 25 percent increase in union dues for public-sector employees in California to fight two anti-union ballot measures.

The issue before the Court was narrow. Under settled law, non-union employees of a company for which a union is recognized as the collective bargaining agent must pay "agency fees" to cover the costs incurred by the union in its bargaining efforts. They may, however, opt out of additional fees imposed to support other union activities, including political action. The decision in Knox that the union should have given non-members the chance to opt out of the fees assessed to cover the political effort was not in itself controversial. But as the Times explains, the five conservative justices went much further:

The majority held that “the union should have sent out a new notice allowing nonmembers to opt in to the special fee.” Justice Alito described the longtime rule allowing union charges to nonmembers unless they opted out of paying part of the dues as “a remarkable boon for unions” that approaches “the limit of what the First Amendment can tolerate.” For the first time and on its own initiative, the court mandated an opt-in requirement. 

To reach this decision, Justice Sotomayor explained in an opinion joined by Justice Ginsburg, “the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the court’s proper role in our system of separated powers.” Under the court’s rules, only the questions set out in the appeal are to be considered by the court. 

As Justice Stephen Breyer noted in a dissent joined by Justice Elena Kagan, “each reason the court offers in support of its ‘opt-in’ conclusion seems in logic to apply, not just to special assessments, but to ordinary yearly fee charges as well.”

The decision seems to open the door to new assaults on unions' powers to collect dues. In so doing, Justice Breyer argued in the conclusion of his dissent, the Court set aside its own precedents:

Consequently, the Court, which held recently that the Constitution permits a State to impose an opt-in requirement, see Davenport, 551 U. S., at 185, has never said that it mandates such a requirement. There is no good reason for the Court suddenly to enter the debate, much less now to decide that the Constitution resolves it.

Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance.

Beyond merely indicating a willingness to set aside settled law, however, the Knox decision lays the conceptual ground for rejection of the ACA's individual mandate, according to Harvard law professor Einer Elhauge. Ironically, days before Knox was delivered, Elhauge had cited the precedents underlying it -- upheld by all sitting justices except  Sotomayor and Kagan -- as supportive of the ACA's Minimum Coverage Provision, a.k.a. the individual mandate.  The "mandate" imposed on nonunion members who benefit from the union's collective bargaining to support that bargaining is precisely analogous, Elhauge argued, to the ACA mandate:

Strictly from the standpoint of their legal character, the health care and agency fee mandates are indistinguishable. In addition to both being “purchase mandates,” they have the same justification. In the bargaining context, Justice Scalia clearly and succinctly stated the rationale that is generally used to justify the imposition of agency fees in his opinion in the 1991 Lehnert case:

Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The "compelling state interest" that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of "free-riding" nonmembers … What is distinctive … about the "free riders" [here] … is that, in some respects, they are free riders whom the law requires the union to carry … Thus, the free ridership (if it were left to be that) would be not incidental, but calculated, not imposed by circumstances, but mandated by government decree.

In the wake of the Knox decision, Elhauge wrote a postscript that all but gave the individual mandate up for dead:

Update: At the same time that this opinion piece posted, the Supreme Court released its opinion in the Knox case, which indicated the justices might be aware of this potential inconsistency.  The Knox case concerned the adequacy of a notice to opt out of a special dues assessment for political union activities, which the Court struck down, rather than a mandate to pay a union for its collective bargaining services.  However, the opinion of the five conservative justices went out of its way to say that, while they “do not revisit today” the constitutionality of a mandate to pay for collective bargaining services, they now thought the free-rider rationale (which they had previously approved) was an “anomaly.”  This suggests that these justices may have anticipated the potential inconsistency between upholding the union fees mandate and striking down the health care mandate, and may be contemplating resolving this inconsistency by changing direction in the future on the underlying issue of agency fees.

It would appear that the Supreme Court has taken up Mitt Romney's Etch-a-Sketch. The five conservative justices are shaking away, not a season of primary campaign promises, but a century of jurisprudence.