Quotes of the Day

A Florida federal judge ruled Monday that Congress overstepped its authority when it passed last year's Affordable Care Act, providing the most serious challenge yet to President Obama's signature legislative accomplishment. Attorneys for the 26 states that brought the suit said Monday that the decision gives those states grounds to ignore the law, though the Obama Administration disagrees and has vowed to appeal. The latest salvos all but guarantee that the Supreme Court will step in to decide whether the law is constitutional, now that two federal judges have ruled in favor of the legislation and, counting the Florida decision, two have ruled against it.

But as those challenges snake their way up through the courts, more than just health care reform is at stake. If successful, the suits could end up rejiggering the delicate balance between the federal government and the states, and could profoundly redefine the limits of congressional power.

The legislation at issue, and in particular its requirement that all Americans buy health insurance, is rooted in the power granted to Congress by the commerce clause of the Constitution. That's the bit of language in Article I that says Congress has the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

For most of the past 100 years, the Supreme Court has interpreted those few words broadly, using them to uphold some of Congress's most progressive pieces of legislation, from Depression-era farm quotas to bans on racial discrimination in the 1960s. But when Senate Democrats included the so-called individual mandate in the health care reform bill last year, some Republicans objected immediately, arguing that the law simply exceeds Congress's authority.

Constitutional-law scholar Randy E. Barnett of Georgetown University Law Center said the mandate is unique in federal law. "Never before in American history has the commerce clause been used to impose a mandate on all Americans to enter into a commercial relationship with a private company," Barnett told a crowd of constitutional-law professors at a panel discussion of the individual mandate in August. "Up until today, all previous exercises of the commerce power had been to regulate activity or to prohibit certain activity."

He has plenty of company. Attorneys general from more than 20 states and other plaintiffs wasted no time in suing to stop the bill, and to especially strip from it the individual mandate. The Florida case was filed "within minutes" of President Obama signing the law, the judge noted in his opinion Monday. The Obama Administration won the first two rounds, when two federal judges dismissed challenges to the bill, though those decisions have been appealed. Then, in December, U.S. District Judge Henry Hudson in Virginia agreed with the critics and ruled the mandate unconstitutional on exactly the grounds that Republicans had based their objections. Monday's ruling by U.S. District Judge Roger Vinson went much further, striking down the entire law.

Once the cases reach the high court, they will offer Chief Justice John Roberts his first chance to put his stamp on an area of law on which his predecessor left lasting marks. Fifteen years ago, Chief Justice William Rehnquist authored the first opinion in nearly a century striking down an act of Congress on the grounds that lawmakers had exceeded the powers granted under the commerce clause. In U.S. v. Lopez — a decision Vinson on Monday called a "watershed" moment — the court invalidated a federal statute that made it illegal to possess a firearm near a school. In passing the law, Congress had reasoned it would easily fall within the 20th century court's understanding of the commerce clause giving Congress the power to regulate anything that had a "substantial effect" on interstate commerce, no matter how far removed from the actual selling and transporting of goods it might be.

Rehnquist struck down the law creating a gun-free school zone, drawing the support of a more radical Clarence Thomas, who wanted to throw out the "substantial effects" test altogether and limit Congress's power to regulating activities directly involved with commerce. Lopez gave new teeth to the idea of a government of limited powers. Five years later, Rehnquist led the majority in striking down parts of the Violence Against Women Act that had given victims of sexual assault a right to sue their attackers.

Those two cases together appeared to halt what had been a nearly century-long streak of decisions extending the power of Congress by interpreting commerce ever more broadly. Probably its most famous, and most expansive, case is 1942's Wickard v. Filburn, in which the court upheld a federal law that imposed fines on farmers who grew more wheat than their quota allowed — even if the excess wheat was intended entirely for personal consumption by the farmer's household. In the following decades, Congress relied on the commerce clause to pass some of its most important laws, including the civil rights–era laws that made it illegal for hotels to bar African Americans from renting rooms. Almost immediately after the Civil Rights Act of 1964 was signed into law, the owner of the Heart of Atlanta Motel sued, arguing that its local business did not constitute interstate commerce and thus was outside the authority of Congress. The Supreme Court ruled that even a stand-alone local motel can be regulated under the commerce clause because its sales effect, however indirectly, the interstate tourism business.

In the decade since the U.S. v. Morrison violence-against-women case, it's been hard to gauge which way the court is leaning. In 2005, reversing a Ninth Circuit decision, the court upheld the federal government's authority to enforce federal marijuana laws in California, despite that state's passage seven years earlier of a law making it legal to grow pot for medical purposes. Just last month, the court turned down an opportunity to hear a challenge to a ruling that had upheld Congress's authority under the commerce clause to bar convicted felons from owning bulletproof vests. Thomas and Antonin Scalia dissented, and accused the court of allowing lower courts to undermine Lopez, while some observers saw the decision to reject the case as a bad sign for those hoping the court would overturn the health care law.

Harvard law professor Charles Fried, who was U.S. Solicitor General in Ronald Reagan's second term and a conservative who mentored now Supreme Court Justice Samuel Alito, tells TIME that the commerce-clause challenges to the individual mandate should fail. "The issues are not the same as they were in Lopez and Morrison," Fried says. "I was one of the lawyers in Morrison and what was in question then was, 'What was commerce?' In Morrison, it was decided beating your girlfriend was not commerce. In Lopez, it was decided that carrying a gun near a school is not commerce. This is different."

Since 1944, Fried says, the Supreme Court has held that the insurance industry counts as commerce and is subject to congressional regulation. "That is clear and I am convinced of it. The challengers are saying, 'Ah, yes, but this is not simply regulating insurance; it's requiring you to buy insurance.' I don't know where the distinction comes from ... But where does it say that when you regulate commerce you may not regulate conduct that is part of that activity?" He notes that Chief Justice John Marshall, in the court's first case over the commerce clause, defined the constitutional license within the clause broadly. "It is the power to regulate: that is, to prescribe the rule by which commerce is to be governed," Marshall wrote in 1824's Gibbons v. Ogden. "This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution."

But in his opinion Monday, Vinson, too, cited the nation's early history — and appealed back beyond Marshall, perhaps the most powerful Chief Justice to serve, to an even more hallowed figure, James Madison, the Constitution's chief architect.

Vinson spent dozens of pages discussing how he believes the early writings of Madison, especially in the Federalist, show that he and other founders intended to severely limit the power of the federal government and that of Congress. "This case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system," he wrote in the opening pages of the decision. "In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government. James Madison, the chief architect of our federalist system, once famously observed: 'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.'"

Vinson later praised Rehnquist's Lopez decision, and said the tension in the health care case stems entirely from the debate over the "substantial effects" test that Thomas finds so objectionable. "If we entertain too expansive an understanding of 'effects,' the Constitution's enumeration of powers becomes meaningless and federal power becomes effectively limitless," Vinson wrote. "If we entertain too narrow an understanding, Congress is stripped of its enumerated power, reinforced by the Necessary and Proper Clause, to protect and control commerce among the several states."

That's the question the new Chief Justice and his colleagues will have to answer, once this case reaches the high court. If the majority agrees with Vinson, President Obama would find not only his health care bill undone, but also face the most significant scaling back of the government's power to use legislation to solve its problems in decades.

Now all sides have but one choice: to wait as these cases — and more than 20 others that according to Reuters have been filed across the country — make their way to the Supreme Court. How soon that will be is unclear, though at least two appeals courts have already announced they will expedite their reviews and scheduled arguments for May. For his part, Barnett, who was favorably cited by Vinson's opinion, said anything is possible.

"It doesn't mean it can't be done now," he told the gathering of law professors. "The Supreme Court is perfectly capable of extending the powers of Congress." Whether it will or will not comes down to the same calculations court watchers are used to: Are there five votes?

• Michael A. Lindenberger
• The health care reform suits that the Supreme Court will have to decide could end up profoundly redefining the limits of congressional power