The Supreme Court Strikes Down the Clean Air Act

Those Poor Free-Riders! Save Them!

Not, not really.  Not yet.

Dan is a much more generous person than I am, and so it should be unsurprising that he believes that the Affordable Care Act cases do not threaten environmental law.  I respectfully dissent.

The Affordable Care Act seeks to establish laws for the health insurance industry — an industry that comprises one-sixth of the American economy.  In order to do that, it establishes a number of regulations that even its opponents concede are perfectly constitutional under the Commerce Clause — setting up insurance exchanges, banning discrimination based upon pre-existing conditions, establishing community rating, etc.

In order to avoid the inevitable adverse selection problems that come with these laws, Congress mandated that everyone must buy insurance.  This prevents free-riders from gaming the system.  Not only is the mandate, then, intimately tied up with national market regulations that everyone acknowledges are constitutional, it is a necessary part of this regulatory scheme.  And the challengers to the law acknowledge this: that is why they yesterday contended that the law is non-severable, i.e. if the mandate is struck down, then the whole law must go.

In other words, the argument of the challengers is:

1)  The mandate is a necessary and inherently connected part of laws that regulate interstate commerce; yet

2)  Not included within the “necessary and proper” means for regulating interstate commerce under the Commerce Clause.

This argument is breathtaking.  It does not overturn 80 years of precedent: it overturns one hundred and ninety-three years of precedent.  Let’s cut to that well-known lefty liberal, Chief Justice John Marshall:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Actually, it might be overturning more than 200 years of precedent.  Cut to that well-known radical egalitarian socialist, Alexander Hamilton:

[A] criterion of what is constitutional, and of what is not so … is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality….

If this court can overrule McCulloch v. Maryland, and hold that Alexander Hamilton didn’t really understand the scope of federal power, then I suppose it can do anything.

Hmmm…let’s see.  The South Coast Air Basin lies wholly within California.  Thus, it is intrastate, and the federal government has no power to regulate it.  Ditto for Houston.

If the Court overturns the ACA, it’s coming.  Just wait.

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Reader Comments

12 Replies to “The Supreme Court Strikes Down the Clean Air Act”

  1. Please, Jonathan, you’re really getting hysterical now. You should really try to understand opposing arguments on their own terms before you make such cavalier comments about their likely implications.

    The commerce clause arguments against the ACA pose no threat to the Clean Air Act whatsoever (for the same reason neither Lopez or Morrison did). In the unlikely event that the Medicaid challenge were successful,n on the other hand, that would pose a real threat to the Clean Air Act’s sanctions regime. I actually discuss both quite extensively in my Iowa Law Review article on the implications of judicially enforced federalism for environmental law.

    JHA

  2. Please, Jonathan, you’re really getting hysterical now. You should really try to understand opposing arguments on their own terms before you make such cavalier comments about their likely implications.

    The commerce clause arguments against the ACA pose no threat to the Clean Air Act whatsoever (for the same reason neither Lopez or Morrison did). In the unlikely event that the Medicaid challenge were successful,n on the other hand, that would pose a real threat to the Clean Air Act’s sanctions regime. I actually discuss both quite extensively in my Iowa Law Review article on the implications of judicially enforced federalism for environmental law.

    JHA

  3. Oh, of course, not Jon: they’ll just chip away at it, little by little, hollowing it out as they go along. That’s this Court’s activist specialty. Everyone said that Lopez and Morrison posed no threat to environmental law — and then came SWANCC and Rapanos. I understand the opposition’s arguments on their own terms quite well — and their implications. Perhaps you should read Eugene’s piece on slippery slopes.

    On the other hand, maybe I am being overheated. After all, it’s not like the Court would try to decide a presidential election or anything…

  4. Oh, of course, not Jon: they’ll just chip away at it, little by little, hollowing it out as they go along. That’s this Court’s activist specialty. Everyone said that Lopez and Morrison posed no threat to environmental law — and then came SWANCC and Rapanos. I understand the opposition’s arguments on their own terms quite well — and their implications. Perhaps you should read Eugene’s piece on slippery slopes.

    On the other hand, maybe I am being overheated. After all, it’s not like the Court would try to decide a presidential election or anything…

  5. I don’t know who “everyone” is that said Lopez and Morrison posed no threat to environmental law. I argued at the time that these decisions posed problems for wetlands regulation — as, incidentally, did Richard Lazarus — and we were right. I think my record predicting this sort of thing has been pretty good. There’s also a real argument Lopez and Morrison poses a challenge for the ESA, but not the primary pollution control statutes.

    As for whether you understand the opposition’s arguments on their own terms, I’ll believe it when I see you characterize the arguments fairly — which I’ve yet to see here or on RBC. Nothing we heard this week at the Court was a surprise for those who were paying attention.

    JHA

  6. I don’t know who “everyone” is that said Lopez and Morrison posed no threat to environmental law. I argued at the time that these decisions posed problems for wetlands regulation — as, incidentally, did Richard Lazarus — and we were right. I think my record predicting this sort of thing has been pretty good. There’s also a real argument Lopez and Morrison poses a challenge for the ESA, but not the primary pollution control statutes.

    As for whether you understand the opposition’s arguments on their own terms, I’ll believe it when I see you characterize the arguments fairly — which I’ve yet to see here or on RBC. Nothing we heard this week at the Court was a surprise for those who were paying attention.

    JHA

  7. So I’m being hysterical when I worry about the health care cases implications for environmental law, and your response is that I am wrong because they will “only” affect the ESA and the CWA. Oh. Kay.

    I was indeed paying attention. I saw and continue to see that the current Court is dominated by right-wing judicial activists who seek to place their reactionary policy preferences in their decisions, all the while castigating alleged liberal “judicial activism.” Since I have believed that for a long time, like you I was not surprised at all.

  8. So I’m being hysterical when I worry about the health care cases implications for environmental law, and your response is that I am wrong because they will “only” affect the ESA and the CWA. Oh. Kay.

    I was indeed paying attention. I saw and continue to see that the current Court is dominated by right-wing judicial activists who seek to place their reactionary policy preferences in their decisions, all the while castigating alleged liberal “judicial activism.” Since I have believed that for a long time, like you I was not surprised at all.

  9. No, you’re being hysterical when you say striking down the mandate will threaten the core provisions of the Clean Air Act. I took the specific claim in your initial post seriously. My mistake. You’re also being hysterical when you suggest striking down the mandate requires gong beyond any of the existing federalism precedents in a way that will affect any existing laws. It doesn’t, just as Printz didn’t (and it is no more incompatible with McCulloch than Printz is either). Again, my mistake was focusing on your specific claim. I’ll try not to take your written words so literally in the future.

  10. No, you’re being hysterical when you say striking down the mandate will threaten the core provisions of the Clean Air Act. I took the specific claim in your initial post seriously. My mistake. You’re also being hysterical when you suggest striking down the mandate requires gong beyond any of the existing federalism precedents in a way that will affect any existing laws. It doesn’t, just as Printz didn’t (and it is no more incompatible with McCulloch than Printz is either). Again, my mistake was focusing on your specific claim. I’ll try not to take your written words so literally in the future.

  11. Well yes, Jon: taking individual words literally without understanding or acknowledging the meaning and context of a piece of writing is something of a problem. It’s a good lawyerly skill to learn.

  12. Well yes, Jon: taking individual words literally without understanding or acknowledging the meaning and context of a piece of writing is something of a problem. It’s a good lawyerly skill to learn.

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About Jonathan

Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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