A Few Thoughts on the Commerce Clause Analysis
posted by Joseph Blocher
Like Gerard, I’m struggling to see how the Chief Justice’s Commerce Clause analysis (what Justice Ginsburg calls his “essay”) is anything but dicta. It’s entirely likely that I’m missing something, but I’ve repeatedly read the sentence “[i]t is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question,” and I just don’t understand it. Since the taxing power is enough to uphold the ACA, the question should be whether it’s necessary to reach the Commerce Clause question, not the other way around.
As part of his explanation for the extended Commerce Clause analysis, the Chief Justice says that the law “reads more naturally as a command to buy insurance than a tax.” There are at least a few ways to understand this. One is that the government primarily defended the law on Commerce Clause grounds, and so those must be addressed first. But that isn’t a very satisfying explanation. If a party presents two independently sufficient arguments, apparently relying more heavily on one than the other, the Court doesn’t have to reject the first before reaching the second. To take just one recent example, in McDonald v. Chicago the petitioners argued “primarily” that the Second Amendment should be incorporated through the Privileges or Immunities Clause, and only “[a]s a secondary argument” that the Due Process Clause was sufficient to do the work. (slip op. at 5) The Court nevertheless saw “no need to reconsider” the Slaughterhouse Cases‘ gutting of Privileges or Immunities, (slip op. at 10) and rested its decision on Due Process instead.
Another reading is that the Court must address the most “naturally” appearing constitutional issues before turning to other, more unnatural, questions. But that doesn’t seem to sit well with most canons of constitutional interpretation or statutory construction, not to mention the basic idea of judicial minimalism. I suppose constitutional avoidance works differently in cases where multiple constitutional issues are presented than in cases where constitutional and non-constitutional grounds for decision are apparent. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”) But isn’t the basic idea behind the avoidance canons to … well, avoid deciding constitutional issues?
As far as I can make out, the heart of the Chief Justice’s rationale is that the order in which he decided the issues was necessary, and that the taxing power analysis somehow draws some substantive support from the failure of the Commerce Clause argument. As he says: “Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” So the taxing power analysis wouldn’t have stood on its own, had the government not made the Commerce Clause argument as well? Perhaps I’ve just been staring at this opinion for too long, but I’m genuinely confused.