Constitutional Law
Spring 2015
Professor David Franklin
Syllabus and Handout Packet
Constitutional Law
Spring 2015
Professor David Franklin
The Basics
Class meetings: Mondays and Wednesdays, 10:00 to 11:40 a.m. in Room 903
My office hours: Tuesdays, 3:00 – 4:00 p.m.
My office: Room 947
My phone number: 312-362-5226
My email address: [email protected]
Overview
This course is about the tools and methods that shape American constitutional decisionmaking. These tools and methods include the Constitution‘s text, structure, and history;
precedents handed down by the Supreme Court and other important players in our
political system; and arguments about the purposes, consequences, original
understandings, and moral principles that underlie the various provisions of our
Constitution. Notice that the emphasis is on tools and methods rather than on rules or
doctrines—we are going to be just as interested in how constitutional arguments are made
as we are in which particular ―black-letter‖ rules have resulted from those arguments. If
you come out of this course able to make cogent, articulate and well-grounded arguments
about constitutional law, the course will have been a success.
Course Requirements
You are required to
(a) do the reading carefully and on time,
(b) show up to class on time and participate thoughtfully in class discussion,
(c) hand in the group assignment by Monday, January 26, and
(d) take the final exam.
The casebook for this course is Stone, Seidman, Sunstein, Tushnet, and Karlan,
Constitutional Law (7th ed. 2013). Unless otherwise indicated, page numbers in the
syllabus refer to pages in the casebook. There is also a photocopied handout. Readings
from the handout are marked ―H‖. In addition, by January 26, you are required to read
The U.S. Supreme Court: A Very Short Introduction, by Linda Greenhouse, which is (as
the title suggests) very short, and runs about $10 on Amazon. I recommend that you read
it before the semester begins.
The attached syllabus describes the reading assignments for the course. Each reading
assignment is delineated by an Arabic numeral (1, 2, 3…). Some reading assignments
cover more than one topic and take up more than one line in the syllabus, so read the
syllabus carefully. We will read one assignment per class session, but I expect us to fall
behind pretty soon (my fault, not yours). If we fall further behind than I expect, I will
make adjustments on the fly. But for now, please assume unless I tell you otherwise that
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we will read one assignment per class. Be prepared to review prior readings as necessary
in order to be prepared for class discussion.
You should also be aware that I call on students in class by name, at random, and
without warning. If you are unprepared to participate thoughtfully in a given class,
you must tell me beforehand, preferably by email. It is a bad idea to be unprepared.
Two notes on in-class decorum: 1) Please arrive for class on time. A steady stream of
late-arriving students during the first ten minutes of class is extremely distracting. 2)
Please do not use your laptop computer during class for things other than taking notes.
This too is extremely distracting. I reserve the right to ban laptops from the classroom.
Grading Policy
Your grade will be determined largely on the basis of the final exam. In addition, I may
add or subtract one grade step (e.g., from a B to a B+ or vice versa) based on classroom
participation. Classroom participation will be measured by the quality and not the
quantity of your contributions. Being unprepared to discuss assigned material when
called upon is a form of low-quality participation. Asking good questions is a form of
high-quality participation, but it does not relieve you of the obligation to answer the
questions I ask.
Outside Reading
Some students find it helpful to consult treatises or hornbooks on constitutional law. The
following three books seem pretty helpful to me, though I can‘t claim to have read them
straight through. I have asked the library to place them on reserve.

Erwin Chemerinsky, Constitutional Law: Principles and Policies

Christopher N. May & Allan Ides, Constitutional Law: National Power and
Federalism—Examples & Explanations (there is also an individual rights volume)

Russell L. Weaver et al., Inside Constitutional Law: What Matters and Why
The Exam
Anything we cover in the reading is fair game for the exam, even if we don‘t end up
discussing it in class. You will hear more about the exam around the middle of the
course. I am not going to talk about the exam before then.
Group Assignment
On pages 2-4 of the handout you will find a list of 30 questions designed to make you
actually read the Constitution. You are not expected to do any research for this
assignment beyond the text of the Constitution itself. You may work on this assignment
individually or in groups of up to six people. Printed answers to these questions (one
copy per group) are to be handed in to in class on Monday, January 26.
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Syllabus
I.
Introduction: The Constitution and the Role of the Federal Courts
1.
Background: the United States Constitution (xli-lvi); 1-25; H 1-5
2.
Marbury v. Madison and the invention of judicial review: U.S. Const., Art.
III (page xlvii); H 6; 25-32
3.
Tools and methods of constitutional interpretation: 37 (excerpt from
Hamilton, Federalist No. 78); H 7; 44-45 (one page of notes on Cooper v.
Aaron); 53-62; H 8-11
4.
Justiciability I—advisory opinions, standing, ripeness, mootness: 82-89;
110-13 (note 3, parts c & d); 89-97; 153-55
Justiciability II—political questions: 121-29 (through Powell v.
McCormack); 138-41
II.
Federalism and the Powers of Congress
5.
Commerce power I—an introduction: U.S. Const., Art. I (xli-xlv); 159-70;
179-85
6.
Commerce power II—Nine Old Men, the Switch in Time, and the Civil
Rights Act: 185-193; H 12-17; 193-99; 171-72; 199-202
7.
Commerce power III—modern cases, including the return of the
Necessary and Proper Clause: 203-14; H 18-35
The spending power: H 36-39
III.
IV.
8.
Health care reform and the limits of congressional authority: H 40-65
9.
Implied limits on congressional power—the ―traditional governmental
functions‖ doctrine and the anti-commandeering principle: H 66; 351-53,
172-77 (through note 3); 353-58
State Regulation of Interstate Commerce
10.
Protection against discrimination: 242 (excerpt from Barnwell Brothers);
245 (excerpt from H.P. Hood); 247-49; 251-55; 255-56 (note 2); 258-60
11.
Facially neutral statutes: 266-72; 273-78; 280 (note 4)
Protection of Individual Rights: Background Issues and Principles
12.
Historical background (before and after the Civil War): 65-69; H 67-68;
459-64; U.S. Const., Amends. XIII, XIV, and XV (li-lii); 729-38
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V.
13.
The state action doctrine: 1555-56; 1597-99; 1582-84; 1592-96 (starting
with Moose Lodge); 1573-76
14.
Guns, or, A Case Study on Originalism and Incorporation: 48-52; 739-50
Implied Fundamental Rights
15.
The rise and fall of Lochner: 750-76
16.
Reproductive autonomy I—from Griswold to Roe: 841-59; 866-69
17.
Reproductive autonomy II—from Roe to Casey: 873-93
18.
Family autonomy: 909-14, 916-17 (note 6)
The ―right to die‖: 937-51
19.
VI.
VII.
Sexual intimacy: 921-37
Equality and the Constitution
20.
The Equal Protection Clause from 1868 to Brown v. Board of Education:
521-22; 465-68 (notes 1-3); 468-70; 523-26; 473-84
21.
The rational basis test: 497-501; 513-17 (through Williamson); 503-06;
675-84
22.
Strict scrutiny and the problem of discriminatory intent: 527-28; H 69-78;
540-42; H 79; 544-46 (notes 1 & 2); 554-59
23.
Affirmative action in education: 562-63 (through Bakke); 580-91; 595-98;
H 80-82; 488-89 (note 4 on Swann); 608-24
24.
Sex discrimination: 629-33; 637-45 (through note 2); 647-54; 671-73
25.
Equal protection of fundamental interests I—procreation, travel, welfare,
education: 776-78; 814-19; 825-26; 828-34; 835-40
26.
Equal protection of fundamental interests II—voting, same-sex marriage:
780-85; 788-92; 795-99; H 83-91
Putting It All Together—Congressional Power Revisited
27.
Section Five of the Fourteenth Amendment I—congressional power to
enforce constitutional rights: 325-29; H 92-97; 331-34; 1556-59 (The
Civil Rights Cases); 345-46 (Note 2 on United States v. Morrison)
28.
Section Five of the Fourteenth Amendment II—congressional power to
abrogate state sovereign immunity: 336-39; H 98-108
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Big Questions
Keep these three questions in mind as we move through the course:
1) Why have a constitution in the first place?
a) Or, to be more precise, why adopt a written constitution? (Courts in the United
Kingdom and Israel sometimes talk about a national ―constitution,‖ but there is no single
written document meeting that description.)
b) And even assuming there is a written constitution, why not adopt one in the form of
an ordinary Act of Congress? (Note that until recently an ordinary Act of the British
Parliament constituted what was in effect the Constitution of Canada. Similarly,
Congress has adopted Organic Acts for some of the American territories.) In other
words, why make the thing so darned hard to amend?
c) Why on earth did I ask you to read the excerpt from the Odyssey reproduced at page 5
of this Handout? (I mean, law professors are supposed to be weird, but that‘s really
weird, isn‘t it? Or is it?)
2) By what rules or methods should the Constitution be interpreted?
a) Should a constitutional provision written in 1787 be understood as it would have been
understood in 1787? If so: as it would have been understood by whom? Can we
recapture this sort of ―original understanding‖? How? At what level of specificity?
b) What role, if any, should subsequent historical experience, current political realities,
or changing social values play in interpreting the Constitution?
c) Which of the following considerations are most important in interpreting the
Constitution: i) the document‘s text; ii) its overall purposes; iii) tradition; iv) precedent;
v) morality; vi) justice; vii) consequences; viii) current public consensus? Is any of these
considerations inappropriate?
d) If the Constitution turns out to contain some stupid provisions, should those
provisions nonetheless be enforced, or should they be ignored in the interest of making
the Constitution ―the best it can be‖?
3) Who is authorized to do the interpreting?
a) Okay, that‘s an easy one: the Supreme Court. But is it really so easy? Where in the
Constitution does it say that the Supreme Court is authorized to interpret the
Constitution?
b) Are members of Congress authorized to interpret the Constitution? Are they obliged
to do so? How about the President and her Cabinet? The governor of Illinois? Police
officers on the beat? Practicing lawyers? Ordinary citizens?
c) If the branches of government differ in their constitutional interpretations, who wins?
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Group Assignment
Before we turn to the materials in the casebook and consider what various people—
primarily justices of the Supreme Court—have said about the Constitution, let‘s begin
with the document itself. Carefully read the Constitution, including its amendments
(pages xli-lvi of your casebook) and answer the following questions.
There is no need to write lengthy answers; most questions can be answered with nothing
more than a few words. Some questions are more open-ended and require a bit of
thought in addition to careful reading. Please cite to the relevant provision(s) of the
Constitution where appropriate.
You may work in groups of up to six students. Each group must hand in one copy of its
set of printed answers to me in class on Monday, January 26.
General questions
1.
Let‘s start with an easy one: How many times is the word democracy mentioned
in the Constitution? How about democratic? Republican? Party (as in political
party)?
2.
How many times does the original Constitution of 1787 (which ends at page xlix
of your casebook) mention the word slave(ry)? Right(s)? Equal(ity)?
3.
How is the Constitution amended? Are there any provisions of the Constitution
that cannot be amended in this way? Which one(s)?
4.
One provision of the Constitution defines a criminal offense and establishes the
evidentiary standard for proving that offense. What is it?
5.
Most of the Constitution‘s provisions tell us what public officials can and can‘t
do. One currently operative provision, however, prohibits private conduct. What
is it?
Congress
6.
Which provision of the Constitution, if any, permits Congress* to establish an Air
Force?
7.
A member of the House of Representatives cannot be sued for libel for falsely
calling her opponent in the upcoming election a ―depraved child molester‖ during
a speech on the House floor. Why not?
*
With the help of the President‘s signature, of course. Phrases like ―enacted by Congress‖ are a slightly
inaccurate but commonly used shorthand. When you see such phrases, please assume (absent contrary
indication) that they mean ―passed by both houses of Congress and signed by the President in accordance
with Article I, section 7 of the Constitution.‖
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8.
Can Congress nullify a state law if most of its members think the state law is
unconstitutional? How? What if most members of Congress think the state law is
just dumb? Can they still nullify it? How?
9.
Congress, tired of wrangling over military spending and hoping to facilitate longrange planning by the Department of Defense, enacts a law that appropriates
money for the military over the next five years. Constitutional?
10.
May the United States Congress pass a law mandating a particular grading curve
at the DePaul Universiry College of Law? If not, why not?
The President
11.
It‘s 2016. Barack Obama has had a happy and successful eight years in office.
Can he run again? Can he run for Vice President?
12.
Can Congress vote the President a bonus if they feel the President is doing a
particularly good job? Can the legislature of the state of Hawai‘i do so?
13.
Can Congress pass a law stating that, in the case of the death of both the President
and the Vice President, the Secretary of Homeland Security shall become
President? How about a law stating that the Speaker of the House shall become
President?
The Supreme Court and Judicial Review
14.
Which provision of the Constitution, if any, authorizes the Supreme Court to
strike down a state law as unconstitutional?
15.
Could Congress pass a law increasing the number of Supreme Court justices from
nine to twelve? Could Congress reduce the number of justices from nine to five?
To one?
16.
Could Congress pass a law eliminating all federal district and circuit courts?
17.
Imagine that Senator Ted Cruz introduces a bill to tax the income of all federal
employees, including judges, an extra 5%. The bill passes the Senate and the
House, and is signed into law by the President. Constitutional?
The Lawmaking Process
18.
Both houses of Congress pass a bill dealing with the ―taxation of boats,‖ but,
because of a typographical error en route to the White House, the bill signed by
the President deals with the ―taxation of goats.‖ Is there a law? What does it say?
19.
Imagine that the President goes on vacation beginning August 30th. Congress
unanimously passes and sends to the White House a bill on September 1st and
goes out of session on September 2nd. The President returns from vacation on
September 12th and vetoes the bill. Is it law? What if Congress had remained in
session the whole time?
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The States
20.
Can Oklahoma place tariffs on imports from Texas?
21.
Can Mississippi declare that only people with Mississippi driver‘s licenses may
drive on its roads?
22.
Can North Dakota and South Dakota enter into a treaty concerning preservation of
wildlife in the northern Great Plains? Can North Dakota enter into a similar treaty
with Canada?
23.
Could the governor of Illinois dub me ―Duke of Chicago‖ (perhaps in return for a
campaign contribution)?
24.
Could the Illinois legislature unilaterally declare Chicago to be the new ―State of
Chicago‖?
Elections
25.
Is there anything in the federal Constitution that would prohibit the state of
Illinois from choosing the members of its state legislature in Springfield by a
lottery among all candidates, culminating in a random drawing on television
involving numbered ping-pong balls?
26.
Article I, § 2, cl. 3, says that congressional representatives shall be apportioned
according to a numerical formula which includes the phrase ―three fifths of all
other Persons.‖ Who were these ―other Persons‖? Is this provision still in effect?
Officers of the United States
27.
Can a person simultaneously be a member of the House of Representatives and
Postmaster General?
28.
In what ways can the Secretary of Health and Human Services be removed from
office (during her lifetime and during the tenure of the President who appointed
her)?
29.
Can army generals be impeached?
30.
Could Congress validly give the Chief Justice the power to appoint the Attorney
General?
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From The Odyssey, by Homer
(translated by Richmond Lattimore)
Book 12, lines 36-54
Then the queenly Circe spoke in words and addressed me:
“So all that has been duly done. Listen now, I will tell you
all, but the very god himself will make you remember.
You will come first of all to the Sirens, who are enchanters
of all mankind and whoever comes their way; and that man
who unsuspecting approaches them, and listens to the Sirens
singing, has no prospect of coming home and delighting
his wife and little children as they stand about him in greeting,
but the Sirens by the melody of their singing enchant him.
They sit in their meadow, but the beach before it is piled with boneheaps
of men now rotted away, and the skins shrivel upon them.
You must drive straight on past, but melt down sweet wax of honey
and with it stop your companions’ ears, so none can listen;
the rest, that is, but if you yourself are wanting to hear them,
then have them tie you hand and foot on the fast ship, standing
upright against the mast with the ropes’ ends lashed around it
so that you can have joy in hearing the song of the Sirens;
but if you supplicate your men and implore them to set you
free, they must tie you fast with even more lashings.”
Lines 177-200
One after another, I stopped the ears of all my companions,
and they bound me hand and foot in the fast ship, standing
upright against the mast with the ropes’ ends lashed around it,
and sitting then to row they dashed their oars in the gray sea.
But when we were as far from the land as a voice shouting
carries, lightly plying, the swift ship as it drew nearer
was seen by the Sirens, and they directed their sweet song toward us:
“Come this way, honored Odysseus, great glory of the Achaians,
and stay your ship, so that you can listen here to our singing;
for no one else has ever sailed past this place in his black ship
until he has listened to the honey-sweet voice that issues
from our lips; then goes on, well pleased, knowing more than ever
he did; for we know everything that the Argives and the Trojans
did and suffered in wide Troy through the gods’ despite.
Over all the generous earth we know everything that happens.”
So they sang, in generous utterance, and the heart within me
desired to listen, and I signaled my companions to set me
free, nodding with my brows, but they leaned on and rowed hard,
and Perimedes and Eurylochos, rising up, straightaway
fastened me with even more lashings and squeezed me tighter.
But when they had rowed on past the Sirens, and we could no longer
hear their voices and lost the sound of their singing, presently
my eager companions took away from their ears the beeswax
with which I had stopped them. Then they set me free from my lashings.
5
Seven Questions About Marbury v. Madison
1)
Should the Court have addressed the question of whether Marbury had a
right to his commission?
2)
Did Marbury have a right to his commission?
3)
When can a federal court review executive actions?
4)
Was section 13 of the Judiciary Act of 1789 unconstitutional?
5)
Should the Court have addressed the question of whether section 13 of the
Judiciary Act of 1789 was constitutional?
6)
Does the Supreme Court have the power to declare federal statutes
unconstitutional?
7)
Who won the case?
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James Bradley Thayer, JOHN MARSHALL 103–07 (1901):
The courts … too promptly and easily proceed to set aside legislative acts. The
legislatures are growing accustomed to this distrust and more and more readily incline to
justify it, and to shed the consideration of constitutional restraints,—certainly as
concerning the exact extent of these restrictions—turning that subject over to the courts;
and, what is worse, they insensibly fall into a habit of assuming that whatever they can
constitutionally do they may do,—as if honor and fair dealing and common honesty were
not relevant to their inquiries…. The power of the judiciary to disregard unconstitutional
legislation…, even when unavoidable, is always attended with a serious evil, namely, that
the correction of legislative mistakes comes from the outside, and the people thus lose the
political experience, and the moral education and stimulus that come from fighting the
question out in the ordinary way, and correcting their own errors. … The tendency of a
common and easy resort this great function, now lamentably too common, is to dwarf the
political capacity of people and to deaden its sense of moral responsibility. It is no light
thing to do that.
Learned Hand, THE BILL OF RIGHTS 73-74 (1958):
Each one of us must in the end choose for himself how far he would like to leave our
collective fate to the wayward vagaries of popular assemblies. No one can fail to
recognize the perils to which the last forty years have exposed such governments. We are
not indeed forced to choose between absolutism and the kind of democracy that so often
prevailed in Greek cities in the sixth to fourth centuries before our era. The Founding
Fathers were acutely, perhaps overacutely, aware of the dangers that had followed that
sort of rule, though, as you all know, they differed widely as to what curbs to impose.
For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if
I knew how to choose them, which I assuredly do not. If they were in charge, I should
miss the stimulus of living in a society where I have, at least theoretically, some part in
the direction of public affairs. Of course I know how illusory would be the belief that my
vote determined anything; but nevertheless when I go to the polls I have a satisfaction in
the sense that we are all engaged in a common venture.
Ronald Dworkin, FREEDOM’S LAW 343–45 (1996):
[Learned Hand] was right in saying that a nation is sick when its most important
collective moral decisions are reserved for specialists who decide in isolation and furnish
the public with only Delphic verdicts. But he wrongly rejected an apparently paradoxical
possibility that was difficult to see in the years in which his opinions were formed, but is
more evident now: that individual citizens can in fact exercise the moral responsibilities
of citizenship better when final decisions involving constitutional values are removed
from ordinary politics and assigned to courts, whose decisions are meant to turn on
principle, not on the weight of numbers or the balance of political influence. … When a
constitutional issue has been decided by the Supreme Court, and is important enough so
that it can be expected to be elaborated, expanded, or even reversed, by future decisions,
a sustained national debate begins, in newspapers and other media, in law schools and
classrooms, in public meetings and around dinner tables. That debate better matches
Hand‘s conception of republican government, in its emphasis on matters of principle,
than almost anything the legislative process on its own is likely to produce.
7
President Andrew Jackson
Veto Message Regarding the Bank of the United States
July 10, 1832
The bill ―to modify and continue‖ the act entitled ―An act to incorporate the subscribers
to the Bank of the United States‖ was presented to me on the 4th July instant. Having
considered it with that solemn regard to the principles of the Constitution which the day
was calculated to inspire, and come to the conclusion that it ought not to become a law, I
herewith return it to the Senate, in which it originated, with my objections.
A bank of the United States is in many respects convenient for the Government and
useful to the people. Entertaining this opinion, and deeply impressed with the belief that
some of the powers and privileges possessed by the existing bank are unauthorized by the
Constitution, subversive of the rights of the States, and dangerous to the liberties of the
people, I felt it my duty at an early period of my Administration to call the attention of
Congress to the practicability of organizing an institution combining all its advantages
and obviating these objections. I sincerely regret that in the act before me I can perceive
none of those modifications of the bank charter which are necessary, in my opinion, to
make it compatible with justice, with sound policy, or with the Constitution of our
country. …
It is maintained by the advocates of the bank that its constitutionality in all its features
ought to be considered as settled by precedent and by the decision of the Supreme Court.
To this conclusion I can not assent. Mere precedent is a dangerous source of authority,
and should not be regarded as deciding questions of constitutional power except where
the acquiescence of the people and the States can be considered as well settled. So far
from this being the case on this subject, an argument against the bank might be based on
precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided
against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its
favor. Prior to the present Congress, therefore, the precedents drawn from that source
were equal. If we resort to the States, the expressions of legislative, judicial, and
executive opinions against the bank have been probably to those in its favor as 4 to 1.
There is nothing in precedent, therefore, which, if its authority were admitted, ought to
weigh in favor of the act before me.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to
control the coordinate authorities of this Government. The Congress, the Executive, and
the Court must each for itself be guided by its own opinion of the Constitution. Each
public officer who takes an oath to support the Constitution swears that he will support it
as he understands it, and not as it is understood by others. It is as much the duty of the
House of Representatives, of the Senate, and of the President to decide upon the
constitutionality of any bill or resolution which may be presented to them for passage or
approval as it is of the supreme judges when it may be brought before them for judicial
decision. The opinion of the judges has no more authority over Congress than the opinion
of Congress has over the judges, and on that point the President is independent of both.
The authority of the Supreme Court must not, therefore, be permitted to control the
8
Congress or the Executive when acting in their legislative capacities, but to have only
such influence as the force of their reasoning may deserve.
But in the case relied upon the Supreme Court have not decided that all the features of
this corporation are compatible with the Constitution. It is true that the court have said
that the law incorporating the bank is a constitutional exercise of power by Congress; but
taking into view the whole opinion of the court and the reasoning by which they have
come to that conclusion, I understand them to have decided that inasmuch as a bank is an
appropriate means for carrying into effect the enumerated powers of the General
Government, therefore the law incorporating it is in accordance with that provision of the
Constitution which declares that Congress shall have power ― to make all laws which
shall be necessary and proper for carrying those powers into execution. ― Having satisfied
themselves that the word ―necessary‖ in the Constitution means ―needful,‖ ―requisite,‖
―essential,‖ ―conducive to,‖ and that ―a bank‖ is a convenient, a useful, and essential
instrument in the prosecution of the Government‘s ―fiscal operations,‖ they conclude that
to ―use one must be within the discretion of Congress ― and that ― the act to incorporate
the Bank of the United States is a law made in pursuance of the Constitution;‖ ―but, ― say
they, ―where the law is not prohibited and is really calculated to effect any of the objects
intrusted to the Government, to undertake here to inquire into the degree of its necessity
would be to pass the line which circumscribes the judicial department and to tread on
legislative ground.‖
The principle here affirmed is that the ―degree of its necessity,‖ involving all the details
of a banking institution, is a question exclusively for legislative consideration. A bank is
constitutional, but it is the province of the Legislature to determine whether this or that
particular power, privilege, or exemption is ―necessary and proper‖ to enable the bank to
discharge its duties to the Government, and from their decision there is no appeal to the
courts of justice. Under the decision of the Supreme Court, therefore, it is the exclusive
province of Congress and the President to decide whether the particular features of this
act are necessary and proper in order to enable the bank to perform conveniently and
efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional, or
unnecessary and improper, and therefore unconstitutional.
Without commenting on the general principle affirmed by the Supreme Court, let us
examine the details of this act in accordance with the rule of legislative action which they
have laid down. It will be found that many of the powers and privileges conferred on it
can not be supposed necessary for the purpose for which it is proposed to be created, and
are not, therefore, means necessary to attain the end in view, and consequently not
justified by the Constitution. …
This act authorizes and encourages transfers of its stock to foreigners and grants them an
exemption from all State and national taxation. So far from being ―necessary and
proper‖ that the bank should possess this power to make it a safe and efficient agent of
the Government in its fiscal operations, it is calculated to convert the Bank of the United
States into a foreign bank, to impoverish our people in time of peace, to disseminate a
foreign influence through every section of the Republic, and in war to endanger our
independence.
9
The several States reserved the power at the formation of the Constitution to regulate and
control titles and transfers of real property, and most, if not all, of them have laws
disqualifying aliens from acquiring or holding lands within their limits. But this act, in
disregard of the undoubted right of the States to prescribe such disqualifications, gives to
aliens stockholders in this bank an interest and title, as members of the corporation, to all
the real property it may acquire within any of the States of this Union. This privilege
granted to aliens is not ―necessary‖ to enable the bank to perform its public duties, nor in
any sense ―proper,‖ because it is vitally subversive of the rights of the States. …
It is maintained by some that the bank is a means of executing the constitutional power
―to coin money and regulate the value thereof.‖ Congress have established a mint to coin
money and passed laws to regulate the value thereof. The money so coined, with its value
so regulated, and such foreign coins as Congress may adopt are the only currency known
to the Constitution. But if they have other power to regulate the currency, it was
conferred to be exercised by themselves, and not to be transferred to a corporation. If the
bank be established for that purpose, with a charter unalterable without its consent,
Congress have parted with their power for a term of years, during which the Constitution
is a dead letter. It is neither necessary nor proper to transfer its legislative power to such a
bank, and therefore unconstitutional.
By its silence, considered in connection with the decision of the Supreme Court in the
case of McCulloch against the State of Maryland, this act takes from the States the power
to tax a portion of the banking business carried on within their limits, in subversion of
one of the strongest barriers which secured them against Federal encroachments.
Banking, like farming, manufacturing, or any other occupation or profession, is a
business …
Upon the formation of the Constitution the States guarded their taxing power with
peculiar jealousy. They surrendered it only as it regards imports and exports. In relation
to every other object within their jurisdiction, whether persons, property, business, or
professions, it was secured in as ample a manner as it was before possessed. …
There is no more appropriate subject of taxation than banks, banking, and bank stocks,
and none to which the States ought more pertinaciously to cling.
It can not be necessary to the character of the bank as a fiscal agent of the Government
that its private business should be exempted from that taxation to which all the State
banks are liable, nor can I conceive it ―proper‖ that the substantive and most essential
powers reserved by the States shall be thus attacked and annihilated as a means of
executing the powers delegated to the General Government. …
If our power over means is so absolute that the Supreme Court will not call in question
the constitutionality of an act of Congress the subject of which ―is not prohibited, and is
really calculated to effect any of the objects intrusted to the Government,‖ although, as in
the case before me, it takes away powers expressly granted to Congress and rights
scrupulously reserved to the States, it becomes us to proceed in our legislation with the
utmost caution. Though not directly, our own powers and the rights of the States may be
indirectly legislated away in the use of means to execute substantive powers. … We may
10
not pass an act prohibiting the States to tax the banking business carried on within their
limits, but we may, as a means of executing our powers over other objects, place that
business in the hands of our agents and then declare it exempt from State taxation in their
hands. Thus may our own powers and the rights of the States, which we can not directly
curtail or invade, be frittered away and extinguished in the use of means employed by us
to execute other powers. That a bank of the United States, competent to all the duties
which may be required by the Government, might be so organized as not to infringe on
our own delegated powers or the reserved rights of the States I do not entertain a doubt.
Had the Executive been called upon to furnish the project of such an institution, the duty
would have been cheerfully performed. In the absence of such a call it was obviously
proper that he should confine himself to pointing out those prominent features in the act
presented which in his opinion make it incompatible with the Constitution and sound
policy. …
It is to be regretted that the rich and powerful too often bend the acts of government to
their selfish purposes. Distinctions in society will always exist under every just
government. Equality of talents, of education, or of wealth can not be produced by human
institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior
industry, economy, and virtue, every man is equally entitled to protection by law; but
when the laws undertake to add to these natural and just advantages artificial distinctions,
to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent
more powerful, the humble members of society—the farmers, mechanics, and laborers—
who have neither the time nor the means of securing like favors to themselves, have a
right to complain of the injustice of their Government. There are no necessary evils in
government. Its evils exist only in its abuses. If it would confine itself to equal protection,
and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and
the poor, it would be an unqualified blessing. In the act before me there seems to be a
wide and unnecessary departure from these just principles.
Nor is our Government to be maintained or our Union preserved by invasions of the
rights and powers of the several States. In thus attempting to make our General
Government strong we make it weak. Its true strength consists in leaving individuals and
States as much as possible to themselves—in making itself felt, not in its power, but in its
beneficence; not in its control, but in its protection; not in binding the States more closely
to the center, but leaving each to move unobstructed in its proper orbit. …
[Full text available at http://www.yale.edu/lawweb/avalon/presiden/veto/ajveto01.htm]
11
President Franklin D. Roosevelt
Radio Address on Reorganization of the Judiciary
March 9, 1937
…Tonight, sitting at my desk in the White House, I make my first radio report to the
people in my second term of office. I am reminded of that evening in March, four years
ago, when I made my first radio report to you. We were then in the midst of the great
banking crisis. Soon after, with the authority of the Congress, we asked the Nation to turn
over all of its privately held gold, dollar for dollar, to the Government of the United
States. Today‘s recovery proves how right that policy was.
But when, almost two years later, it came before the Supreme Court its constitutionality
was upheld only by a five-to-four vote. The change of one vote would have thrown all the
affairs of this great Nation back into hopeless chaos. In effect, four Justices ruled that the
right under a private contract to exact a pound of flesh was more sacred than the main
objectives of the Constitution to establish an enduring Nation. …
If we learned anything from the Depression [it is that] we will not allow ourselves to run
around in new circles of futile discussion and debate, always postponing the day of
decision. The American people have learned from the Depression. For in the last three
national elections an overwhelming majority of them voted a mandate that the Congress
and the President begin the task of providing that protection—not after long years of
debate, but now. The Courts, however, have cast doubts on the ability of the elected
Congress to protect us against catastrophe by meeting squarely our modern social and
economic conditions. …
I want to talk with you very simply about the need for present action in this crisis—the
need to meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, illhoused.
Last Thursday I described the American form of Government as a three horse team
provided by the Constitution to the American people so that their field might be plowed.
The three horses are, of course, the three branches of government—the Congress, the
Executive and the Courts. Two of the horses are pulling in unison today; the third is not.
Those who have intimated that the President of the United States is trying to drive that
team, overlook the simple fact that the President, as Chief Executive, is himself one of
the three horses.
It is the American people themselves who are in the driver‘s seat. It is the American
people themselves who want the furrow plowed. It is the American people themselves
who expect the third horse to pull in unison with the other two.
I hope that you have re-read the Constitution of the United States in these past few
weeks. Like the Bible, it ought to be read again and again. It is an easy document to
understand when you remember that it was called into being because the Articles of
Confederation under which the original thirteen States tried to operate after the
Revolution showed the need of a National Government with power enough to handle
national problems. In its Preamble, the Constitution states that it was intended to form a
more perfect Union and promote the general welfare; and the powers given to the
12
Congress to carry out those purposes can be best described by saying that they were all
the powers needed to meet each and every problem which then had a national character
and which could not be met by merely local action.
But the framers went further. Having in mind that in succeeding generations many other
problems then undreamed of would become national problems, they gave to the Congress
the ample broad powers ―to levy taxes ... and provide for the common defense and
general welfare of the United States.‖ That, my friends, is what I honestly believe to have
been the clear and underlying purpose of the patriots who wrote a Federal Constitution to
create a National Government with national power, intended as they said, ―to form a
more perfect union ... for ourselves and our posterity.‖
For nearly twenty years there was no conflict between the Congress and the Court. Then
Congress passed a statute which, in 1803, the Court said violated an express provision of
the Constitution. The Court claimed the power to declare it unconstitutional and did so
declare it. But a little later the Court itself admitted that it was an extraordinary power to
exercise and through Mr. Justice Washington laid down this limitation upon it: ―It is but a
decent respect due to the wisdom, the integrity and the patriotism of the legislative body,
by which any law is passed, to presume in favor of its validity until its violation of the
Constitution is proved beyond all reasonable doubt.‖
But since the rise of the modern movement for social and economic progress through
legislation, the Court has more and more often and more and more boldly asserted a
power to veto laws passed by the Congress and State Legislatures in complete disregard
of this original limitation. In the last four years the sound rule of giving statutes the
benefit of all reasonable doubt has been cast aside. The Court has been acting not as a
judicial body, but as a policy-making body.
When the Congress has sought to stabilize national agriculture, to improve the conditions
of labor, to safeguard business against unfair competition, to protect our national
resources, and in many other ways, to serve our clearly national needs, the majority of the
Court has been assuming the power to pass on the wisdom of these acts of the
Congress—and to approve or disapprove the public policy written into these laws.
That is not only my accusation. It is the accusation of most distinguished justices of the
present Supreme Court. I have not the time to quote to you all the language used by
dissenting justices in many of these cases. But in the case holding the Railroad
Retirement Act unconstitutional, for instance, Chief Justice Hughes said in a dissenting
opinion that the majority opinion was ―a departure from sound principles,‖ and placed
―an unwarranted limitation upon the commerce clause.‖ And three other justices agreed
with him. …
In the face of such dissenting opinions, it is perfectly clear that, as Chief Justice Hughes
has said, ―We are under a Constitution, but the Constitution is what the judges say it is.‖
The Court in addition to the proper use of its judicial functions has improperly set itself
up as a third house of the Congress—a super-legislature, as one of the justices has called
it—reading into the Constitution words and implications which are not there, and which
were never intended to be there.
13
We have, therefore, reached the point as a nation where we must take action to save the
Constitution from the Court and the Court from itself. We must find a way to take an
appeal from the Supreme Court to the Constitution itself. We want a Supreme Court
which will do justice under the Constitution and not over it. In our courts we want a
government of laws and not of men.
I want—as all Americans want—an independent judiciary as proposed by the framers of
the Constitution. That means a Supreme Court that will enforce the Constitution as
written, that will refuse to amend the Constitution by the arbitrary exercise of judicial
power—in other words by judicial say-so. It does not mean a judiciary so independent
that it can deny the existence of facts which are universally recognized.
How then could we proceed to perform the mandate given us? It was said in last year‘s
Democratic platform, ―If these problems cannot be effectively solved within the
Constitution, we shall seek such clarifying amendment as will assure the power to enact
those laws, adequately to regulate commerce, protect public health and safety, and
safeguard economic security.‖ In other words, we said we would seek an amendment
only if every other possible means by legislation were to fail.
When I commenced to review the situation with the problem squarely before me, I came
by a process of elimination to the conclusion that, short of amendments, the only method
which was clearly constitutional, and would at the same time carry out other much
needed reforms, was to infuse new blood into all our Courts. We must have men worthy
and equipped to carry out impartial justice. But, at the same time, we must have judges
who will bring to the Courts a present-day sense of the Constitution—judges who will
retain in the Courts the judicial functions of a court, and reject the legislative powers
which the courts have today assumed.
In forty-five out of the forty-eight States of the Union, Judges are chosen not for life but
for a period of years. In many States Judges must retire at the age of seventy. Congress
has provided financial security by offering life pensions at full pay for Federal Judges on
all Courts who are willing to retire at seventy. In the case of Supreme Court Justices, that
pension is $20,000 a year. But all Federal Judges, once appointed, can, if they choose,
hold office for life, no matter how old they may get to be.
What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court
has reached the age of seventy and does not avail himself of the opportunity to retire on a
pension, a new member shall be appointed by the President then in office, with the
approval, as required by the Constitution, of the Senate of the United States.
That plan has two chief purposes. By bringing into the judicial system a steady and
continuing stream of new and younger blood, I hope, first, to make the administration of
all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision
of social and economic problems younger men who have had personal experience and
contact with modern facts and circumstances under which average men have to live and
work. This plan will save our national Constitution from hardening of the judicial
arteries. The number of Judges to be appointed would depend wholly on the decision of
present Judges now over seventy, or those who would subsequently reach the age of
seventy.
14
If, for instance, any one of the six Justices of the Supreme Court now over the age of
seventy should retire as provided under the plan, no additional place would be created.
Consequently, although there never can be more than fifteen, there may be only fourteen,
or thirteen, or twelve. And there may be only nine.
There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in
full vigor. It has been discussed and approved by many persons of high authority ever
since a similar proposal passed the House of Representatives in 1869.
Why was the age fixed at seventy? Because the laws of many States, the practice of the
Civil Service, the regulations of the Army and Navy, and the rules of many of our
Universities and of almost every great private business enterprise, commonly fix the
retirement age at seventy years or less.
The statute would apply to all the courts in the Federal system. There is general approval
so far as the lower Federal courts are concerned. The plan has met opposition only so far
as the Supreme Court of the United States itself is concerned. If such a plan is good for
the lower courts it certainly ought to be equally good for the highest Court from which
there is no appeal.
Those opposing this plan have sought to arouse prejudice and fear by crying that I am
seeking to ―pack‖ the Supreme Court and that a baneful precedent will be established.
What do they mean by the words ―packing the Court‖? Let me answer this question with
a bluntness that will end all honest misunderstanding of my purposes.
If by that phrase ―packing the Court‖ it is charged that I wish to place on the bench
spineless puppets who would disregard the law and would decide specific cases as I
wished them to be decided, I make this answer: that no President fit for his office would
appoint, and no Senate of honorable men fit for their office would confirm, that kind of
appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would
confirm Justices worthy to sit beside present members of the Court who understand those
modern conditions, that I will appoint Justices who will not undertake to override the
judgment of the Congress on legislative policy, that I will appoint Justices who will act as
Justices and not as legislators—if the appointment of such Justices can be called ―packing
the Courts,‖ then I say that I and with me the vast majority of the American people favor
doing just that thing—now.
Is it a dangerous precedent for the Congress to change the number of the Justices? The
Congress has always had, and will have, that power. The number of justices has been
changed several times before, in the Administration of John Adams and Thomas
Jefferson—both signers of the Declaration of Independence—Andrew Jackson, Abraham
Lincoln and Ulysses S. Grant.
I suggest only the addition of Justices to the bench in accordance with a clearly defined
principle relating to a clearly defined age limit. Fundamentally, if in the future, America
cannot trust the Congress it elects to refrain from abuse of our Constitutional usages,
15
democracy will have failed far beyond the importance to it of any kind of precedent
concerning the Judiciary. We think it so much in the public interest to maintain a
vigorous judiciary that we encourage the retirement of elderly Judges by offering them a
life pension at full salary. Why then should we leave the fulfillment of this public policy
to chance or make independent on upon the desire or prejudice of any individual Justice?
It is the clear intention of our public policy to provide for a constant flow of new and
younger blood into the Judiciary. Normally every President appoints a large number of
District and Circuit Court Judges and a few members of the Supreme Court. Until my
first term practically every President of the United States has appointed at least one
member of the Supreme Court. President Taft appointed five members and named a Chief
Justice; President Wilson, three; President Harding, four, including a Chief Justice;
President Coolidge, one; President Hoover, three, including a Chief Justice.
Such a succession of appointments should have provided a Court well-balanced as to age.
But chance and the disinclination of individuals to leave the Supreme bench have now
given us a Court in which five Justices will be over seventy-five years of age before next
June and one over seventy. Thus a sound public policy has been defeated.
I now propose that we establish by law an assurance against any such ill-balanced Court
in the future. I propose that hereafter, when a Judge reaches the age of seventy, a new and
younger Judge shall be added to the Court automatically. In this way I propose to enforce
a sound public policy by law instead of leaving the composition of our Federal Courts,
including the highest, to be determined by chance or the personal indecision of
individuals.
If such a law as I propose is regarded as establishing a new precedent, is it not a most
desirable precedent?
Like all lawyers, like all Americans, I regret the necessity of this controversy. But the
welfare of the United States, and indeed of the Constitution itself, is what we all must
think about first. Our difficulty with the Court today rises not from the Court as an
institution but from human beings within it. But we cannot yield our constitutional
destiny to the personal judgement of a few men who, being fearful of the future, would
deny us the necessary means of dealing with the present. This plan of mine is no attack
on the Court; it seeks to restore the Court to its rightful and historic place in our
Constitutional Government and to have it resume its high task of building anew on the
Constitution ―a system of living law.‖ The Court itself can best undo what the Court has
done.
I have thus explained to you the reasons that lie behind our efforts to secure results by
legislation within the Constitution. I hope that thereby the difficult process of
constitutional amendment may be rendered unnecessary. But let us examine the process.
There are many types of amendment proposed. Each one is radically different from the
other. There is no substantial groups within the Congress or outside it who are agreed on
any single amendment. It would take months or years to get substantial agreement upon
the type and language of the amendment. It would take months and years thereafter to get
a two-thirds majority in favor of that amendment in both Houses of the Congress. Then
would come the long course of ratification by three-fourths of all the States. No
16
amendment which any powerful economic interests or the leaders of any powerful
political party have had reason to oppose has ever been ratified within anything like a
reasonable time. And thirteen states which contain only five percent of the voting
population can block ratification even though the thirty-five States with ninety-five
percent of the population are in favor of it. …
And remember one thing more. Even if an amendment were passed, and even if in the
years to come it were to be ratified, its meaning would depend upon the kind of Justices
who would be sitting on the Supreme Court Bench. An amendment, like the rest of the
Constitution, is what the Justices say it is rather than what its framers or you might hope
it is.
This proposal of mine will not infringe in the slightest upon the civil or religious liberties
so dear to every American. My record as Governor and President proves my devotion to
those liberties. You who know me can have no fear that I would tolerate the destruction
by any branch of government of any part of our heritage of freedom. …
I am in favor of action through legislation. First, because I believe that it can be passed at
this session of the Congress. Second, because it will provide a reinvigorated, liberalminded Judiciary necessary to furnish quicker and cheaper justice from bottom to top.
Third, because it will provide a series of Federal Courts willing to enforce the
Constitution as written, and unwilling to assert legislative powers by writing into it their
own political and economic policies.
During the past half century the balance of power between the three great branches of the
Federal Government, has been tipped out of balance by the Courts in direct contradiction
of the high purposes of the framers of the Constitution. It is my purpose to restore that
balance. You who know me will accept my solemn assurance that in a world in which
democracy is under attack, I seek to make American democracy succeed. You and I will
do our part.
[Full text available at http://www.mhric.org/fdr/chat9.html.]
17
GONZALES
v.
RAICH
545 U.S. 1 (2005)
Justice STEVENS delivered the opinion of the Court.
California is one of at least nine States that authorize the use of marijuana for medicinal
purposes. The question presented in this case is whether the power vested in Congress by Article
I, § 8, of the Constitution ―[t]o make all Laws which shall be necessary and proper for carrying
into Execution‖ its authority to ―regulate Commerce with foreign Nations, and among the several
States‖ includes the power to prohibit the local cultivation and use of marijuana in compliance
with California law.
California has been a pioneer in the regulation of marijuana. In 1913, California was one of the
first States to prohibit the sale and possession of marijuana, and at the end of the century,
California became the first State to authorize limited use of the drug for medicinal purposes. In
1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of
1996…. The Act creates an exemption from criminal prosecution for physicians, as well as for
patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with
the recommendation or approval of a physician….
Respondents Angel Raich and Diane Monson are California residents who suffer from a variety
of serious medical conditions and have sought to avail themselves of medical marijuana pursuant
to the terms of the Compassionate Use Act…. Both women have been using marijuana as a
medication for several years pursuant to their doctors‘ recommendation, and both rely heavily on
cannabis to function on a daily basis. Indeed, Raich‘s physician believes that forgoing cannabis
treatments would certainly cause Raich excruciating pain and could very well prove fatal.
Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways
including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate
her own, and thus relies on two caregivers, litigating as ―John Does,‖ to provide her with locally
grown marijuana at no charge….
On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement
Administration (DEA) came to Monson‘s home. After a thorough investigation, the county
officials concluded that her use of marijuana was entirely lawful as a matter of California law.
Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her
cannabis plants.
Respondents thereafter brought this action against the Attorney General of the United States and
the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the
federal Controlled Substances Act (CSA) to the extent it prevents them from possessing,
obtaining, or manufacturing cannabis for their personal medical use. …
The case is made difficult by respondents‘ strong arguments that they will suffer irreparable
harm because, despite a congressional finding to the contrary, marijuana does have valid
therapeutic purposes. The question before us, however, is not whether it is wise to enforce the
18
statute in these circumstances; rather, it is whether Congress‘ power to regulate interstate
markets for medicinal substances encompasses the portions of those markets that are supplied
with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a
valid exercise of federal power, even as applied to the troubling facts of this case. We
accordingly vacate the judgment of the Court of Appeals.
...[P]rompted by a perceived need to consolidate the growing number of piecemeal drug laws and
to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse
Prevention and Control Act [of 1970]. Title II of that Act, the CSA, repealed most of the earlier
antidrug laws in favor of a comprehensive regime to combat the international and interstate
traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to
control the legitimate and illegitimate traffic in controlled substances.20 Congress was
particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit
channels. To effectuate these goals, Congress devised a closed regulatory system making it
unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a
manner authorized by the CSA. …
Respondents in this case do not dispute that passage of the CSA … was well within Congress‘
commerce power. Nor do they contend that any provision or section of the CSA amounts to an
unconstitutional exercise of congressional authority. Rather, respondents‘ challenge is actually
quite limited; they argue that the CSA‘s categorical prohibition of the manufacture and
possession of marijuana as applied to the intrastate manufacture and possession of marijuana for
medical purposes pursuant to California law exceeds Congress‘ authority under the Commerce
Clause. …
Our case law firmly establishes Congress‘ power to regulate purely local activities that are part
of an economic ―class of activities‖ that have a substantial effect on interstate commerce. As we
stated in Wickard, ―even if appellee‘s activity be local and though it may not be regarded as
20
In particular, Congress made the following findings:
―(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and
are necessary to maintain the health and general welfare of the American people.
―(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled
substances have a substantial and detrimental effect on the health and general welfare of the American
people.
―(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce.
Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture,
local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce
because―(A) after manufacture, many controlled substances are transported in interstate commerce,
―(B) controlled substances distributed locally usually have been transported in interstate commerce
immediately before their distribution, and
―(C) controlled substances possessed commonly flow through interstate commerce immediately prior to
such possession.
―(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic
in such substances.
―(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled
substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of
controls, between controlled substances manufactured and distributed interstate and controlled substances
manufactured and distributed intrastate.
―(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the
effective control of the interstate incidents of such traffic.‖ 21 U.S.C. §§ 801(1)-(6).
19
commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce.‖ We have never required Congress to legislate with
scientific exactitude….
The similarities between this case and Wickard are striking. Like the farmer in Wickard,
respondents are cultivating, for home consumption, a fungible commodity for which there is an
established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was
designed ―to control the volume [of wheat] moving in interstate and foreign commerce in order
to avoid surpluses...‖ and consequently control the market price, a primary purpose of the CSA is
to control the supply and demand of controlled substances in both lawful and unlawful drug
markets. In Wickard, we had no difficulty concluding that Congress had a rational basis for
believing that, when viewed in the aggregate, leaving home-consumed wheat outside the
regulatory scheme would have a substantial influence on price and market conditions. Here too,
Congress had a rational basis for concluding that leaving home-consumed marijuana outside
federal control would similarly affect price and market conditions. ...
Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the
Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard
involved a ―quintessential economic activity‖—a commercial farm—whereas respondents do not
sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat
for use on farms had a significant impact on market prices. Those differences, though factually
accurate, do not diminish the precedential force of this Court‘s reasoning.
The fact that [Filburn]‘s own impact on the market was ―trivial by itself‖ was not a sufficient
reason for removing him from the scope of federal regulation. That the Secretary of Agriculture
elected to exempt even smaller farms from regulation does not speak to his power to regulate all
those whose aggregated production was significant, nor did that fact play any role in the Court‘s
analysis. Moreover, even though [Filburn] was indeed a commercial farmer, the activity he was
engaged in—the cultivation of wheat for home consumption—was not treated by the Court as
part of his commercial farming operation. And while it is true that the record in the Wickard
case itself established the causal connection between the production for local use and the national
market, we have before us findings by Congress to the same effect. …
In assessing the scope of Congress‘ authority under the Commerce Clause, we stress that the task
before us is a modest one. We need not determine whether respondents‘ activities, taken in the
aggregate, substantially affect interstate commerce in fact, but only whether a ―rational basis‖
exists for so concluding. Given the enforcement difficulties that attend distinguishing between
marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into
illicit channels, we have no difficulty concluding that Congress had a rational basis for believing
that failure to regulate the intrastate manufacture and possession of marijuana would leave a
gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to
regulate the interstate market in a fungible commodity, Congress was acting well within its
authority to ―make all Laws which shall be necessary and proper‖ to ―regulate Commerce ...
among the several States.‖ U.S. Const., Art. I, § 8. That the regulation ensnares some purely
intrastate activity is of no moment. As we have done many times before, we refuse to excise
individual components of that larger scheme.
To support their contrary submission, respondents rely heavily on two of our more recent
Commerce Clause cases.… Those two cases, of course, are Lopez and Morrison. As an initial
20
matter, the statutory challenges at issue in those cases were markedly different from the
challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual
applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison,
the parties asserted that a particular statute or provision fell outside Congress‘ commerce power
in its entirety. This distinction is pivotal for we have often reiterated that ―[w]here the class of
activities is regulated and that class is within the reach of federal power, the courts have no
power ‗to excise, as trivial, individual instances‘ of the class.‖
At issue in Lopez was the validity of the Gun-Free School Zones Act of 1990, which was a brief,
single-subject statute making it a crime for an individual to possess a gun in a school zone. The
Act did not regulate any economic activity and did not contain any requirement that the
possession of a gun have any connection to past interstate activity or a predictable impact on
future commercial activity. …
The statutory scheme that the Government is defending in this litigation is at the opposite end of
the regulatory spectrum. As explained above, the CSA … was a lengthy and detailed statute
creating a comprehensive framework for regulating the production, distribution, and possession
of five classes of ―controlled substances.‖ … Marijuana was listed as the 10th item in the third
subcategory. That classification, unlike the discrete prohibition established by the Gun-Free
School Zones Act of 1990, was merely one of many ―essential part[s] of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the intrastate activity
were regulated.‖ Lopez. Our opinion in Lopez casts no doubt on the validity of such a program.
Nor does this Court‘s holding in Morrison. The Violence Against Women Act of 1994 created a
federal civil remedy for the victims of gender-motivated crimes of violence. The remedy was
enforceable in both state and federal courts, and generally depended on proof of the violation of
a state law. Despite congressional findings that such crimes had an adverse impact on interstate
commerce, we held the statute unconstitutional because, like the statute in Lopez, it did not
regulate economic activity. …
Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are
quintessentially economic. ―Economics‖ refers to ―the production, distribution, and consumption
of commodities.‖ Webster‘s Third New International Dictionary 720 (1966). The CSA is a
statute that regulates the production, distribution, and consumption of commodities for which
there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or
manufacture of an article of commerce is a rational (and commonly utilized) means of regulating
commerce in that product.… Because the CSA is a statute that directly regulates economic,
commercial activity, our opinion in Morrison casts no doubt on its constitutionality.
The Court of Appeals was able to conclude otherwise only by isolating a ―separate and distinct‖
class of activities that it held to be beyond the reach of federal power, defined as ―the intrastate,
noncommercial cultivation, possession and use of marijuana for personal medical purposes on
the advice of a physician and in accordance with state law.‖… The differences between the
members of a class so defined and the principal traffickers in Schedule I substances might be
sufficient to justify a policy decision exempting the narrower class from the coverage of the
CSA. The question, however, is whether Congress‘ contrary policy judgment, i.e., its decision to
include this narrower ―class of activities‖ within the larger regulatory scheme, was
constitutionally deficient. We have no difficulty concluding that Congress acted rationally in
determining that none of the characteristics making up the purported class, whether viewed
21
individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided
class of activities defined by the Court of Appeals was an essential part of the larger regulatory
scheme. …
One need not have a degree in economics to understand why a nationwide exemption for the vast
quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably
would include use by friends, neighbors, and family members) may have a substantial impact on
the interstate market for this extraordinarily popular substance. The congressional judgment that
an exemption for such a significant segment of the total market would undermine the orderly
enforcement of the entire regulatory scheme is entitled to a strong presumption of validity.
[L]imiting the activity to marijuana possession and cultivation ―in accordance with state law‖
cannot serve to place respondents‘ activities beyond congressional reach. The Supremacy
Clause unambiguously provides that if there is any conflict between federal and state law, federal
law shall prevail. … Just as state acquiescence to federal regulation cannot expand the bounds of
the Commerce Clause, so too state action cannot circumscribe Congress‘ plenary commerce
power. …
Thus the case for the exemption comes down to the claim that a locally cultivated product that is
used domestically rather than sold on the open market is not subject to federal regulation. Given
the findings in the CSA and the undisputed magnitude of the commercial market for marijuana,
our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that
claim.
Justice SCALIA, concurring in the judgment.
I agree with the Court‘s holding that the Controlled Substances Act (CSA) may validly be
applied to respondents‘ cultivation, distribution, and possession of marijuana for personal,
medicinal use. I write separately because my understanding of the doctrinal foundation on which
that holding rests is, if not inconsistent with that of the Court, at least more nuanced.
…[O]ur cases have mechanically recited that the Commerce Clause permits congressional
regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities
of interstate commerce, and persons or things in interstate commerce; and (3) activities that
―substantially affect‖ interstate commerce. The first two categories are self-evident, since they
are the ingredients of interstate commerce itself. See Gibbons v. Ogden. The third category,
however, is different in kind, and its recitation without explanation is misleading and incomplete.
It is misleading because, unlike the channels, instrumentalities, and agents of interstate
commerce, activities that substantially affect interstate commerce are not themselves part of
interstate commerce, and thus the power to regulate them cannot come from the Commerce
Clause alone. Rather, … Congress‘s regulatory authority over intrastate activities that are not
themselves part of interstate commerce (including activities that have a substantial effect on
interstate commerce) derives from the Necessary and Proper Clause. And the category of
―activities that substantially affect interstate commerce‖ is incomplete because the authority to
enact laws necessary and proper for the regulation of interstate commerce is not limited to laws
governing intrastate activities that substantially affect interstate commerce. Where necessary to
make a regulation of interstate commerce effective, Congress may regulate even those intrastate
activities that do not themselves substantially affect interstate commerce.
22
Our cases show that the regulation of intrastate activities may be necessary to and proper for the
regulation of interstate commerce in two general circumstances. Most directly, the commerce
power permits Congress not only to devise rules for the governance of commerce between States
but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it
by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp. That is why the
Court has repeatedly sustained congressional legislation on the ground that the regulated
activities had a substantial effect on interstate commerce. …
This principle is not without limitation. In Lopez and Morrison, the Court—conscious of the
potential of the ―substantially affects‖ test to ―obliterate the distinction between what is national
and what is local,‖—rejected the argument that Congress may regulate noneconomic activity
based solely on the effect that it may have on interstate commerce through a remote chain of
inferences. Thus, although Congress‘s authority to regulate intrastate activity that substantially
affects interstate commerce is broad, it does not permit the Court to ―pile inference upon
inference,‖ in order to establish that noneconomic activity has a substantial effect on interstate
commerce.
As we implicitly acknowledged in Lopez, however, Congress‘s authority to enact laws necessary
and proper for the regulation of interstate commerce is not limited to laws directed against
economic activities that have a substantial effect on interstate commerce. Though the conduct in
Lopez was not economic, the Court nevertheless recognized that it could be regulated as ―an
essential part of a larger regulation of economic activity, in which the regulatory scheme could
be undercut unless the intrastate activity were regulated.‖ …
Although this power ―to make ... regulation effective‖ commonly overlaps with the authority to
regulate economic activities that substantially affect interstate commerce, and may in some cases
have been confused with that authority, the two are distinct. The regulation of an intrastate
activity may be essential to a comprehensive regulation of interstate commerce even though the
intrastate activity does not itself ―substantially affect‖ interstate commerce. Moreover, as …
Lopez … suggests, Congress may regulate even noneconomic local activity if that regulation is a
necessary part of a more general regulation of interstate commerce. The relevant question is
simply whether the means chosen are ―reasonably adapted‖ to the attainment of a legitimate end
under the commerce power. …
Lopez and Morrison affirm that Congress may not regulate certain ―purely local‖ activity within
the States based solely on the attenuated effect that such activity may have in the interstate
market. But those decisions do not declare noneconomic intrastate activities to be categorically
beyond the reach of the Federal Government. Neither case involved the power of Congress to
exert control over intrastate activities in connection with a more comprehensive scheme of
regulation; Lopez expressly disclaimed that it was such a case, and Morrison did not even discuss
the possibility that it was….
And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice
Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate,
the means must be ―appropriate‖ and ―plainly adapted‖ to that end. Moreover, they may not be
otherwise ―prohibited‖ and must be ―consistent with the letter and spirit of the constitution.‖ …
By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish
23
―controlled substances manufactured and distributed intrastate‖ from ―controlled substances
manufactured and distributed interstate,‖ but it hardly makes sense to speak in such terms.
Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown
at home and possessed for personal use is never more than an instant from the interstate
market—and this is so whether or not the possession is for medicinal use or lawful use under the
laws of a particular State.…
Justice O‘CONNOR, with whom the CHIEF JUSTICE and Justice THOMAS join as to all but Part III,
dissenting.
We enforce the ―outer limits‖ of Congress‘ Commerce Clause authority not for their own sake,
but to protect historic spheres of state sovereignty from excessive federal encroachment and
thereby to maintain the distribution of power fundamental to our federalist system of
government. One of federalism‘s chief virtues, of course, is that it promotes innovation by
allowing for the possibility that ―a single courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without risk to the rest of the
country.‖ New State Ice Co. v. Liebmann (Brandeis, J., dissenting).
This case exemplifies the role of States as laboratories. The States‘ core police powers have
always included authority to define criminal law and to protect the health, safety, and welfare of
their citizens. Exercising those powers, California … has come to its own conclusion about the
difficult and sensitive question of whether marijuana should be available to relieve severe pain
and suffering. Today the Court … announces a rule that gives Congress a perverse incentive to
legislate broadly pursuant to the Commerce Clause—nestling questionable assertions of its
authority into comprehensive regulatory schemes—rather than with precision. That rule and the
result it produces in this case are irreconcilable with our decisions in Lopez and Morrison.
Accordingly I dissent.
I
Our decision [in Lopez] about whether gun possession in school zones substantially affected
interstate commerce turned on four considerations. First, we observed that our ―substantial
effects‖ cases generally have upheld federal regulation of economic activity that affected
interstate commerce, but that § 922(q) was a criminal statute having ―nothing to do with
‗commerce‘ or any sort of economic enterprise.‖ In this regard, we also noted that ―[s]ection
922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated….‖ Second, we noted that
the statute contained no express jurisdictional requirement establishing its connection to
interstate commerce. Third, we found telling the absence of legislative findings about the
regulated conduct‘s impact on interstate commerce. Finally, we rejected as too attenuated the
Government‘s argument that firearm possession in school zones could result in violent crime
which in turn could adversely affect the national economy. Later in Morrison, we relied on the
same four considerations to hold that § 40302 of the Violence Against Women Act exceeded
Congress‘ authority under the Commerce Clause.
In my view, the case before us is materially indistinguishable from Lopez and Morrison when the
same considerations are taken into account.
24
II
What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes
its cues from Congress, applying the above considerations to the activity regulated by the
Controlled Substances Act (CSA) in general.… In my view, allowing Congress to set the terms
of the constitutional debate in this way, i.e., by packaging regulation of local activity in broader
schemes, is tantamount to removing meaningful limits on the Commerce Clause.
The Court‘s principal means of distinguishing Lopez from this case is to observe that the GunFree School Zones Act of 1990 was a ―brief, single-subject statute,‖ whereas the CSA is ―a
lengthy and detailed statute creating a comprehensive framework for regulating the production,
distribution, and possession of five classes of ‗controlled substances.‘‖ Thus, according to the
Court, it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing local
activity (there gun possession in school zones), whereas the local activity that the CSA targets (in
this case cultivation and possession of marijuana for personal medicinal use) cannot be separated
from the general drug control scheme of which it is a part.
Today‘s decision allows Congress to regulate intrastate activity without check, so long as there is
some implication by legislative design that regulating intrastate activity is essential (and the
Court appears to equate ―essential‖ with ―necessary‖) to the interstate regulatory scheme.… If
the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should
have described the relevant crime as ―transfer or possession of a firearm anywhere in the
nation‖—thus including commercial and noncommercial activity, and clearly encompassing
some activity with assuredly substantial effect on interstate commerce. Had it done so, the
majority hints, we would have sustained its authority to regulate possession of firearms in school
zones….
Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on
superficial and formalistic distinctions. Likewise I did not understand our discussion of the role
of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the
federalist balance our Constitution requires, as a signal to Congress to enact legislation that is
more extensive and more intrusive into the domain of state power. If the Court always defers to
Congress as it does today, little may be left to the notion of enumerated powers.
The hard work for courts, then, is to identify objective markers for confining the analysis in
Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as
applied to them and those similarly situated. I agree with the Court that we must look beyond
respondents‘ own activities. Otherwise, individual litigants could always exempt themselves
from Commerce Clause regulation merely by pointing to the obvious—that their personal
activities do not have a substantial effect on interstate commerce. See Wickard. The task is to
identify a mode of analysis that allows Congress to regulate more than nothing (by declining to
reduce each case to its litigants) and less than everything (by declining to let Congress set the
terms of analysis)….
A number of objective markers are available to confine the scope of constitutional review
here…. Respondents challenge only the application of the CSA to medicinal use of marijuana.
Moreover, … California, like other States, has drawn on its reserved powers to distinguish the
regulation of medicinal marijuana. To ascertain whether Congress‘ encroachment is
constitutionally justified in this case, then, I would focus here on the personal cultivation,
25
possession, and use of marijuana for medicinal purposes.
Having thus defined the relevant conduct, we must determine whether, under our precedents, the
conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if
intrastate cultivation and possession of marijuana for one‘s own medicinal use can properly be
characterized as economic, and I question whether it can, it has not been shown that such activity
substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated
that regulating such activity is necessary to the interstate drug control scheme.
The Court‘s definition of economic activity is breathtaking. It defines as economic any activity
involving the production, distribution, and consumption of commodities.… [T]he Court‘s
definition of economic activity for purposes of Commerce Clause jurisprudence threatens to
sweep all of productive human activity into federal regulatory reach. …
It will not do to say that Congress may regulate noncommercial activity simply because it may
have an effect on the demand for commercial goods, or because the noncommercial endeavor
can, in some sense, substitute for commercial activity. Most commercial goods or services have
some sort of privately producible analogue. Home care substitutes for daycare. Charades games
substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the
supermarket. To draw the line wherever private activity affects the demand for market goods is
to draw no line at all, and to declare everything economic. We have already rejected the result
that would follow—a federal police power. See Lopez. …
The Court suggests that Wickard, which we have identified [in Lopez] as ―perhaps the most far
reaching example of Commerce Clause authority over intrastate activity,‖ established federal
regulatory power over any home consumption of a commodity for which a national market
exists. I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938
(AAA), which directed the Secretary of Agriculture to set national quotas on wheat production,
and penalties for excess production.… In contrast to the CSA‘s limitless assertion of power,
Congress provided an exemption within the AAA for small producers. … Wickard, then, did not
extend Commerce Clause authority to something as modest as the home cook‘s herb garden. …
Even assuming that economic activity is at issue in this case, the Government has made no
showing in fact that the possession and use of homegrown marijuana for medical purposes, in
California or elsewhere, has a substantial effect on interstate commerce. Similarly, the
Government has not shown that regulating such activity is necessary to an interstate regulatory
scheme. Whatever the specific theory of ―substantial effects‖ at issue (i.e., whether the activity
substantially affects interstate commerce, whether its regulation is necessary to an interstate
regulatory scheme, or both), a concern for dual sovereignty requires that Congress‘ excursion
into the traditional domain of States be justified.
That is why characterizing this as a case about the Necessary and Proper Clause does not change
the analysis significantly. Congress must exercise its authority under the Necessary and Proper
Clause in a manner consistent with basic constitutional principles. … Accordingly, something
more than mere assertion is required when Congress purports to have power over local activity
whose connection to an intrastate market is not self-evident. Otherwise, the Necessary and
Proper Clause will always be a back door for unconstitutional federal regulation. … In particular,
the CSA‘s introductory declarations are too vague and unspecific to demonstrate that the federal
statutory scheme will be undermined if Congress cannot exert power over individuals like
26
respondents. The declarations are not even specific to marijuana.…
III
We would do well to recall how James Madison, the father of the Constitution, described our
system of joint sovereignty to the people of New York: ―The powers delegated by the proposed
constitution to the federal government are few and defined. Those which are to remain in the
State governments are numerous and indefinite .... The powers reserved to the several States will
extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and
properties of the people, and the internal order, improvement, and prosperity of the State.‖ The
Federalist No. 45.
Relying on Congress‘ abstract assertions, the Court has endorsed making it a federal crime to
grow small amounts of marijuana in one‘s own home for one‘s own medicinal use. This
overreaching stifles an express choice by some States, concerned for the lives and liberties of
their people, to regulate medical marijuana differently. If I were a California citizen, I would not
have voted for the medical marijuana ballot initiative; if I were a California legislator I would not
have supported the Compassionate Use Act. But whatever the wisdom of California‘s
experiment with medical marijuana, the federalism principles that have driven our Commerce
Clause cases require that room for experiment be protected in this case. For these reasons I
dissent.
[The dissenting opinion of Justice THOMAS is omitted.]
27
UNITED STATES
v.
COMSTOCK
130 S. Ct. 1949 (2010)
JUSTICE BREYER delivered the opinion of the Court.
A federal civil-commitment statute authorizes the Department of Justice to detain a mentally ill,
sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. 18
U.S.C. § 4248. … Here we ask whether the Federal Government has the authority under Article I
of the Constitution to enact this federal civil-commitment program or whether its doing so falls
beyond the reach of a government ―of enumerated powers.‖ McCulloch. We conclude that the
Constitution grants Congress the authority to enact § 4248 as ―necessary and proper for carrying
into Execution‖ the powers ―vested by‖ the ―Constitution in the Government of the United
States.‖ Art. I, § 8, cl. 18.
The federal statute before us allows a district court to order the civil commitment of an
individual who is currently ―in the custody of the [Federal] Bureau of Prisons,‖ if that individual
(1) has previously ―engaged or attempted to engage in sexually violent conduct or child
molestation,‖ (2) currently ―suffers from a serious mental illness, abnormality, or disorder,‖ and
(3) ―as a result of‖ that mental illness, abnormality, or disorder is ―sexually dangerous to others,‖
in that ―he would have serious difficulty in refraining from sexually violent conduct or child
molestation if released.‖
In order to detain such a person, the Government (acting through the Department of Justice) must
certify to a federal district judge that the prisoner meets the conditions just described, i.e., that he
has engaged in sexually violent activity or child molestation in the past and that he suffers from a
mental illness that makes him correspondingly dangerous to others. When such a certification is
filed, the statute automatically stays the individual‘s release from prison, ibid., thereby giving the
Government an opportunity to prove its claims at a hearing through psychiatric (or other)
evidence. The statute provides that the prisoner ―shall be represented by counsel‖ and shall have
―an opportunity‖ at the hearing ―to testify, to present evidence, to subpoena witnesses on his
behalf, and to confront and cross-examine‖ the Government‘s witnesses.
If the Government proves its claims by ―clear and convincing evidence,‖ the court will order the
prisoner‘s continued commitment in ―the custody of the Attorney General,‖ who must ―make all
reasonable efforts to cause‖ the State where that person was tried, or the State where he is
domiciled, to ―assume responsibility for his custody, care, and treatment.‖ If either State is
willing to assume that responsibility, the Attorney General ―shall release‖ the individual ―to the
appropriate official‖ of that State. But if, ―notwithstanding such efforts, neither such State will
assume such responsibility,‖ then ―the Attorney General shall place the person for treatment in a
suitable [federal] facility.‖
Confinement in the federal facility will last until either (1) the person‘s mental condition
improves to the point where he is no longer dangerous (with or without appropriate ongoing
28
treatment), in which case he will be released; or (2) a State assumes responsibility for his
custody, care, and treatment, in which case he will be transferred to the custody of that State.…
The question presented is whether the Necessary and Proper Clause, Art. I, § 8, cl. 18, grants
Congress authority sufficient to enact the statute before us. In resolving that question, we
assume, but we do not decide, that other provisions of the Constitution—such as the Due Process
Clause—do not prohibit civil commitment in these circumstances. In other words, we assume for
argument‘s sake that the Federal Constitution would permit a State to enact this statute, and we
ask solely whether the Federal Government, exercising its enumerated powers, may enact such a
statute as well. On that assumption, we conclude that the Constitution grants Congress legislative
power sufficient to enact § 4248. We base this conclusion on five considerations, taken together.
First, the Necessary and Proper Clause grants Congress broad authority to enact federal
legislation. Nearly 200 years ago, this Court stated that the Federal ―[G]overnment is
acknowledged by all to be one of enumerated powers,‖ McCulloch, which means that ―[e]very
law enacted by Congress must be based on one or more of‖ those powers, United States v.
Morrison. But, at the same time, ―a government, entrusted with such‖ powers ―must also be
entrusted with ample means for their execution.‖ McCulloch. Accordingly, the Necessary and
Proper Clause makes clear that the Constitution‘s grants of specific federal legislative authority
are accompanied by broad power to enact laws that are ―convenient, or useful‖ or ―conducive‖ to
the authority‘s ―beneficial exercise.‖ Id. Chief Justice Marshall emphasized that the word
―necessary‖ does not mean ―absolutely necessary.‖ In language that has come to define the
scope of the Necessary and Proper Clause, he wrote: ―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.‖ Id.
We have since made clear that, in determining whether the Necessary and Proper Clause grants
Congress the legislative authority to enact a particular federal statute, we look to see whether the
statute constitutes a means that is rationally related to the implementation of a constitutionally
enumerated power.
Of course, as Chief Justice Marshall stated, a federal statute, in addition to being authorized by
Art. I, § 8, must also ―not [be] prohibited‖ by the Constitution. McCulloch. But as we have
already stated, the present statute‘s validity under provisions of the Constitution other than the
Necessary and Proper Clause is an issue that is not before us. Under the question presented, the
relevant inquiry is simply ―whether the means chosen are ‗reasonably adapted‘ to the attainment
of a legitimate end under the commerce power‖ or under other powers that the Constitution
grants Congress the authority to implement. Gonzales v. Raich (SCALIA, J., concurring in
judgment).
We have also recognized that the Constitution ―addresse[s] [the] choice of means … primarily ...
to the judgment of Congress. If it can be seen that the means adopted are really calculated to
attain the end, the degree of their necessity, the extent to which they conduce to the end, the
closeness of the relationship between the means adopted and the end to be attained, are matters
for congressional determination alone.‖ Burroughs v. United States (1934)….
29
Neither Congress‘ power to criminalize conduct, nor its power to imprison individuals who
engage in that conduct, nor its power to enact laws governing prisons and prisoners, is explicitly
mentioned in the Constitution. But Congress nonetheless possesses broad authority to do each of
those things in the course of ―carrying into Execution‖ the enumerated powers ―vested by‖ the
―Constitution in the Government of the United States,‖ Art. I, § 8, cl. 18—authority granted by
the Necessary and Proper Clause.
Second, the civil-commitment statute before us constitutes a modest addition to a set of federal
prison-related mental-health statutes that have existed for many decades. We recognize that even
a longstanding history of related federal action does not demonstrate a statute‘s constitutionality.
A history of involvement, however, can nonetheless be ―helpful in reviewing the substance of a
congressional statutory scheme,‖ Gonzales, and, in particular, the reasonableness of the relation
between the new statute and pre-existing federal interests.
[The Court described a long series of federal statutes, enacted between 1855 and 2006, dealing
with delivery of mental health care to federal prisoners.] In 2006, Congress enacted the
particular statute before us. It differs from earlier statutes in that it focuses directly upon persons
who, due to a mental illness, are sexually dangerous. … Aside from its specific focus on sexually
dangerous persons, § 4248 is … a modest addition to a longstanding federal statutory framework,
which has been in place since 1855.
Third, Congress reasonably extended its longstanding civil-commitment system to cover
mentally ill and sexually dangerous persons who are already in federal custody, even if doing so
detains them beyond the termination of their criminal sentence. For one thing, the Federal
Government is the custodian of its prisoners. As federal custodian, it has the constitutional power
to act in order to protect nearby (and other) communities from the danger federal prisoners may
pose. Indeed, at common law, one ―who takes charge of a third person‖ is ―under a duty to
exercise reasonable care to control‖ that person to prevent him from causing reasonably
foreseeable ―bodily harm to others.‖ If a federal prisoner is infected with a communicable
disease that threatens others, surely it would be ―necessary and proper‖ for the Federal
Government to take action, pursuant to its role as federal custodian, to refuse (at least until the
threat diminishes) to release that individual among the general public, where he might infect
others…. And if confinement of such an individual is a ―necessary and proper‖ thing to do, then
how could it not be similarly ―necessary and proper‖ to confine an individual whose mental
illness threatens others to the same degree?
Moreover, § 4248 is ―reasonably adapted‖ to Congress‘ power to act as a responsible federal
custodian (a power that rests, in turn, upon federal criminal statutes that legitimately seek to
implement constitutionally enumerated authority). Congress could have reasonably concluded
that federal inmates who suffer from a mental illness that causes them to ―have serious difficulty
in refraining from sexually violent conduct‖ would pose an especially high danger to the public
if released. And Congress could also have reasonably concluded … that a reasonable number of
such individuals would likely not be detained by the States if released from federal custody, in
part because the Federal Government itself severed their claim to ―legal residence in any State‖
by incarcerating them in remote federal prisons….
30
Fourth, the statute properly accounts for state interests. Respondents and the dissent contend that
§ 4248 violates the Tenth Amendment because it ―invades the province of state sovereignty‖ in
an area typically left to state control. New York v. United States. But the Tenth Amendment‘s
text is clear: ―The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.‖ (Emphasis added.)
The powers ―delegated to the United States by the Constitution‖ include those specifically
enumerated powers listed in Article I along with the implementation authority granted by the
Necessary and Proper Clause. Virtually by definition, these powers are not powers that the
Constitution ―reserved to the States.‖
Nor does this statute invade state sovereignty or otherwise improperly limit the scope of ―powers
that remain with the States.‖ To the contrary, it requires accommodation of state interests: The
Attorney General must inform the State in which the federal prisoner ―is domiciled or was tried‖
that he is detaining someone with respect to whom those States may wish to assert their
authority, and he must encourage those States to assume custody of the individual. He must also
immediately ―release‖ that person ―to the appropriate official of‖ either State ―if such State will
assume [such] responsibility.‖ And either State has the right, at any time, to assert its authority
over the individual, which will prompt the individual‘s immediate transfer to State custody….
Fifth, the links between § 4248 and an enumerated Article I power are not too attenuated. Neither
is the statutory provision too sweeping in its scope. Invoking the cautionary instruction that we
may not ―pile inference upon inference‖ in order to sustain congressional action under Article I,
Lopez, respondents argue that, when legislating pursuant to the Necessary and Proper Clause,
Congress‘ authority can be no more than one step removed from a specifically enumerated
power. But this argument is irreconcilable with our precedents. [Take] Greenwood v. United
States, 350 U.S. 366 (1956), as an example. In that case we upheld the (likely indefinite) civil
commitment of a mentally incompetent federal defendant who was accused of robbing a United
States Post Office. The underlying enumerated Article I power was the power to ―Establish Post
Offices and Post Roads.‖ Art. I, § 8, cl. 7. But, as Chief Justice Marshall recognized in
McCulloch, ―the power ‗to establish post offices and post roads‘ ... is executed by the single act
of making the establishment ... .[F]rom this has been inferred the power and duty of carrying the
mail along the post road, from one post office to another. And, from this implied power, has
again been inferred the right to punish those who steal letters from the post office, or rob the
mail.‖ (emphasis added). And … from the implied power to punish we have further inferred
both the power to imprison, and, in Greenwood, the federal civil-commitment power….
Nor need we fear that our holding today confers on Congress a general ―police power, which the
Founders denied the National Government and reposed in the States.‖ Morrison. [Section] 4248
is narrow in scope. It has been applied to only a small fraction of federal prisoners. And its
reach is limited to individuals already ―in the custody of the‖ Federal Government. Indeed, the
Solicitor General argues that ―the Federal Government would not have ... the power to commit a
person who ... has been released from prison and whose period of supervised release is also
completed.‖ Thus, far from a ―general police power,‖ § 4248 is a reasonably adapted and
narrowly tailored means of pursuing the Government‘s legitimate interest as a federal custodian
in the responsible administration of its prison system.
31
To be sure, as we have previously acknowledged, ―The Federal Government undertakes
activities today that would have been unimaginable to the Framers in two senses; first, because
the Framers would not have conceived that any government would conduct such activities; and
second, because the Framers would not have believed that the Federal Government, rather than
the States, would assume such responsibilities. Yet the powers conferred upon the Federal
Government by the Constitution were phrased in language broad enough to allow for the
expansion of the Federal Government‘s role.‖ New York v. United States. The Framers
demonstrated considerable foresight in drafting a Constitution capable of such resilience through
time. As Chief Justice Marshall observed nearly 200 years ago, the Necessary and Proper Clause
is part of ―a constitution intended to endure for ages to come, and, consequently, to be adapted to
the various crises of human affairs.‖ McCulloch.
We take these five considerations together. They include: (1) the breadth of the Necessary and
Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for
the statute‘s enactment in light of the Government‘s custodial interest in safeguarding the public
from dangers posed by those in federal custody, (4) the statute‘s accommodation of state
interests, and (5) the statute‘s narrow scope. Taken together, these considerations lead us to
conclude that the statute is a ―necessary and proper‖ means of exercising the federal authority
that permits Congress to create federal criminal laws, to punish their violation, to imprison
violators, to provide appropriately for those imprisoned, and to maintain the security of those
who are not imprisoned but who may be affected by the federal imprisonment of others. The
Constitution consequently authorizes Congress to enact the statute.
We do not reach or decide any claim that the statute or its application denies equal protection of
the laws, procedural or substantive due process, or any other rights guaranteed by the
Constitution. Respondents are free to pursue those claims on remand, and any others they have
preserved….
JUSTICE KENNEDY, concurring in the judgment.
… Respondents argue that congressional authority under the Necessary and Proper Clause can be
no more than one step removed from an enumerated power. This is incorrect. When the inquiry
is whether a federal law has sufficient links to an enumerated power to be within the scope of
federal authority, the analysis depends not on the number of links in the congressional-power
chain but on the strength of the chain.
Concluding that a relation can be put into a verbal formulation that fits somewhere along a causal
chain of federal powers is merely the beginning, not the end, of the constitutional inquiry. See
Lopez. The inferences must be controlled by some limitations lest, as Thomas Jefferson warned,
congressional powers become completely unbounded by linking one power to another ad
infinitum in a veritable game of ―this is the house that Jack built.‖
This separate writing serves two purposes. The first is to withhold assent from certain statements
and propositions of the Court‘s opinion. The second is to caution that the Constitution does
require the invalidation of congressional attempts to extend federal powers in some instances.
32
The Court concludes that, when determining whether Congress has the authority to enact a
specific law under the Necessary and Proper Clause, we look ―to see whether the statute
constitutes a means that is rationally related to the implementation of a constitutionally
enumerated power.‖
The terms ―rationally related‖ and ―rational basis‖ must be employed with care, particularly if
either is to be used as a stand-alone test. … Rather, under the Necessary and Proper Clause,
application of a ―rational basis‖ test should be at least as exacting as it has been in the Commerce
Clause cases, if not more so. [Our Commerce Clause] precedents require a tangible link to
commerce, not a mere conceivable rational relation…. ―[S]imply because Congress may
conclude that a particular activity substantially affects interstate commerce does not necessarily
make it so.‖ Lopez. The rational basis referred to in the Commerce Clause context is a
demonstrated link in fact, based on empirical demonstration….
A separate concern stems from the Court‘s explanation of the Tenth Amendment. I had thought
it a basic principle that the powers reserved to the States consist of the whole, undefined
residuum of power remaining after taking account of powers granted to the National
Government. The Constitution delegates limited powers to the National Government and then
reserves the remainder for the States (or the people), not the other way around, as the Court‘s
analysis suggests. And the powers reserved to the States are so broad that they remain undefined.
Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the
States and the States alone.
It is correct in one sense to say that if the National Government has the power to act under the
Necessary and Proper Clause then that power is not one reserved to the States. But the precepts
of federalism embodied in the Constitution inform which powers are properly exercised by the
National Government in the first place. See Lopez (KENNEDY, J., concurring); see also
McCulloch (powers ―consist[ent] with the letter and spirit of the constitution, are
constitutional‖). It is of fundamental importance to consider whether essential attributes of state
sovereignty are compromised by the assertion of federal power under the Necessary and Proper
Clause; if so, that is a factor suggesting that the power is not one properly within the reach of
federal power.
The opinion of the Court should not be interpreted to hold that the only, or even the principal,
constraints on the exercise of congressional power are the Constitution‘s express prohibitions.
The Court‘s discussion of the Tenth Amendment invites the inference that restrictions flowing
from the federal system are of no import when defining the limits of the National Government‘s
power, as it proceeds by first asking whether the power is within the National Government‘s
reach, and if so it discards federalism concerns entirely.
These remarks explain why the Court ignores important limitations stemming from federalism
principles. Those principles are essential to an understanding of the function and province of the
States in our constitutional structure.
With these observations, I concur in the judgment of the Court.
33
JUSTICE ALITO, concurring in the judgment.
I am concerned about the breadth of the Court‘s language, and the ambiguity of the standard that
the Court applies, but I am persuaded, on narrow grounds, that it was ―necessary and proper‖ for
Congress to enact the statute at issue in this case, in order to ―carr[y] into Execution‖ powers
specifically conferred on Congress by the Constitution….
I entirely agree with the dissent that ―[t]he Necessary and Proper Clause empowers Congress to
enact only those laws that ‗carr[y] into Execution‘ one or more of the federal powers enumerated
in the Constitution,‖ but § 4248 satisfies that requirement because it is a necessary and proper
means of carrying into execution the enumerated powers that support the federal criminal
statutes under which the affected prisoners were convicted. The Necessary and Proper Clause
provides the constitutional authority for most federal criminal statutes….
All of this has been recognized since the beginning of our country…. The only additional
question presented here is whether, in order to carry into execution the enumerated powers on
which the federal criminal laws rest, it is also necessary and proper for Congress to protect the
public from dangers created by the federal criminal justice and prison systems. In my view, the
answer to that question is ―yes.‖ Just as it is necessary and proper for Congress to provide for the
apprehension of escaped federal prisoners, it is necessary and proper for Congress to provide for
the civil commitment of dangerous federal prisoners who would otherwise escape civil
commitment as a result of federal imprisonment.…
The Necessary and Proper Clause does not give Congress carte blanche. Although the term
―necessary‖ does not mean ―absolutely necessary‖ or indispensable, the term requires an
―appropriate‖ link between a power conferred by the Constitution and the law enacted by
Congress. And it is an obligation of this Court to enforce compliance with that limitation.
The law in question here satisfies that requirement. This is not a case in which it is merely
possible for a court to think of a rational basis on which Congress might have perceived an
attenuated link between the powers underlying the federal criminal statutes and the challenged
civil commitment provision. Here, there is a substantial link to Congress‘ constitutional
powers….
JUSTICE THOMAS, with whom JUSTICE SCALIA joins…, dissenting.
…Chief Justice Marshall famously summarized Congress‘ authority under the Necessary and
Proper Clause in McCulloch, which has stood for nearly 200 years as this Court‘s definitive
interpretation of that text: ―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.‖
McCulloch‘s summation is descriptive of the Clause itself, providing that federal legislation is a
valid exercise of Congress‘ authority under the Clause if it satisfies a two-part test: First, the law
must be directed toward a ―legitimate‖ end, which McCulloch defines as one ―within the scope
of the [C]onstitution‖—that is, the powers expressly delegated to the Federal Government by
some provision in the Constitution. Second, there must be a necessary and proper fit between the
34
―means‖ (the federal law) and the ―end‖ (the enumerated power or powers) it is designed to
serve. McCulloch accords Congress a certain amount of discretion in assessing means-end fit
under this second inquiry. The means Congress selects will be deemed ―necessary‖ if they are
―appropriate‖ and ―plainly adapted‖ to the exercise of an enumerated power, and ―proper‖ if they
are not otherwise ―prohibited‖ by the Constitution and not ―[in]consistent‖ with its ―letter and
spirit.‖
Critically, however, McCulloch underscores the linear relationship the Clause establishes
between the two inquiries: Unless the end itself is ―legitimate,‖ the fit between means and end is
irrelevant. In other words, no matter how ―necessary‖ or ―proper‖ an Act of Congress may be to
its objective, Congress lacks authority to legislate if the objective is anything other than
―carrying into Execution‖ one or more of the Federal Government‘s enumerated powers….
No enumerated power in Article I, § 8, expressly delegates to Congress the power to enact a
civil-commitment regime for sexually dangerous persons, nor does any other provision in the
Constitution vest Congress or the other branches of the Federal Government with such a power.
Accordingly, § 4248 can be a valid exercise of congressional authority only if it is ―necessary
and proper for carrying into Execution‖ one or more of those federal powers actually enumerated
in the Constitution.
Section 4248 does not fall within any of those powers. The Government identifies no specific
enumerated power or powers as a constitutional predicate for § 4248, and none are readily
discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has
interpreted most expansively—can justify federal civil detention of sex offenders. Under the
Court‘s precedents, Congress may not regulate noneconomic activity (such as sexual violence)
based solely on the effect such activity may have, in individual cases or in the aggregate, on
interstate commerce. Morrison; Lopez.
This Court, moreover, consistently has recognized that the power to care for the mentally ill and,
where necessary, the power ―to protect the community from the dangerous tendencies of some‖
mentally ill persons, are among the numerous powers that remain with the States. Addington v.
Texas, 441 U.S. 418, 426 (1979). As a consequence, we have held that States may ―take
measures to restrict the freedom of the dangerously mentally ill‖—including those who are
sexually dangerous—provided that such commitments satisfy due process and other
constitutional requirements. Kansas v. Hendricks, 521 U.S. 346, 363 (1997).
Section 4248 closely resembles the involuntary civil-commitment laws that States have enacted
under their parens patriae and general police powers. Indeed, it is clear, on the face of the Act
and in the Government‘s arguments urging its constitutionality, that § 4248 is aimed at
protecting society from acts of sexual violence, not toward ―carrying into Execution‖ any
enumerated power or powers of the Federal Government….
To be sure, protecting society from violent sexual offenders is certainly an important end. Sexual
abuse is a despicable act with untold consequences for the victim personally and society
generally. But the Constitution does not vest in Congress the authority to protect society from
every bad act that might befall it….
35
SOUTH DAKOTA
v.
DOLE
483 U.S 203 (1987)
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner South Dakota permits persons 19 years of age or older to purchase beer containing up
to 3.2% alcohol. In 1984 Congress enacted 23 U.S.C. § 158, which directs the Secretary of
Transportation to withhold [five percent] of federal highway funds otherwise allocable from
States ―in which the purchase or public possession ... of any alcoholic beverage by a person who
is less than twenty-one years of age is lawful.‖ The State sued in United States District Court
seeking a declaratory judgment that § 158 violates the constitutional limitations on congressional
exercise of the spending power and violates the Twenty-first Amendment to the United States
Constitution.
[We] need not decide in this case whether that Amendment would prohibit an attempt by
Congress to legislate directly a national minimum drinking age. Here, Congress has acted
indirectly under its spending power to encourage uniformity in the States‘ drinking ages. As we
explain below, we find this legislative effort within constitutional bounds even if Congress may
not regulate drinking ages directly.
Incident to [the spending] power, Congress may attach conditions on the receipt of federal funds,
and has repeatedly employed the power ―to further broad policy objectives by conditioning
receipt of federal moneys upon compliance by the recipient with federal statutory and
administrative directives.‖ The breadth of this power was made clear in United States v. Butler,
297 U.S. 1, 66 (1936), where the Court, resolving a longstanding debate over the scope of the
Spending Clause, determined that ―the power of Congress to authorize expenditure of public
moneys for public purposes is not limited by the direct grants of legislative power found in the
Constitution.‖ Thus, objectives not thought to be within Article I‘s ―enumerated legislative
fields,‖ id., may nevertheless be attained through the use of the spending power and the
conditional grant of federal funds.
The spending power is of course not unlimited, but is instead subject to several general
restrictions articulated in our cases. The first of these limitations is derived from the language of
the Constitution itself: the exercise of the spending power must be in pursuit of ―the general
welfare.‖ In considering whether a particular expenditure is intended to serve general public
purposes, courts should defer substantially to the judgment of Congress.* Second, we have
required that if Congress desires to condition the States‘ receipt of federal funds, it ―must do so
unambiguously ..., enabl[ing] the States to exercise their choice knowingly, cognizant of the
consequences of their participation.‖ Third, our cases have suggested (without significant
elaboration) that conditions on federal grants might be illegitimate if they are unrelated ―to the
federal interest in particular national projects or programs.‖ Finally, we have noted that other
*
The level of deference to the congressional decision is such that the Court has more recently questioned
whether ―general welfare‖ is a judicially enforceable restriction at all.
36
constitutional provisions may provide an independent bar to the conditional grant of federal
funds.
South Dakota does not seriously claim that § 158 is inconsistent with any of the first three
restrictions mentioned above. We can readily conclude that the provision is designed to serve
the general welfare, especially in light of the fact that ―the concept of welfare or the opposite is
shaped by Congress....‖ Congress found that the differing drinking ages in the States created
particular incentives for young persons to combine their desire to drink with their ability to drive,
and that this interstate problem required a national solution. The means it chose to address this
dangerous situation were reasonably calculated to advance the general welfare. The conditions
upon which States receive the funds, moreover, could not be more clearly stated by Congress.
And … the condition imposed by Congress is directly related to one of the main purposes for
which highway funds are expended-safe interstate travel. This goal of the interstate highway
system had been frustrated by varying drinking ages among the States. A Presidential
commission appointed to study alcohol-related accidents and fatalities on the Nation‘s highways
concluded that the lack of uniformity in the States‘ drinking ages created ―an incentive to drink
and drive‖ because ―young persons commut[e] to border States where the drinking age is lower.‖
By enacting § 158, Congress conditioned the receipt of federal funds in a way reasonably
calculated to address this particular impediment to a purpose for which the funds are expended.
The remaining question about the validity of § 158—and the basic point of disagreement
between the parties—is whether the Twenty-first Amendment constitutes an ―independent
constitutional bar‖ to the conditional grant of federal funds. Petitioner, relying on its view that
the Twenty-first Amendment prohibits direct regulation of drinking ages by Congress, asserts
that ―Congress may not use the spending power to regulate that which it is prohibited from
regulating directly under the Twenty-first Amendment.‖ But … the ―independent constitutional
bar‖ limitation on the spending power is not, as petitioner suggests, a prohibition on the indirect
achievement of objectives which Congress is not empowered to achieve directly. Instead, … the
power may not be used to induce the States to engage in activities that would themselves be
unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously
discriminatory state action or the infliction of cruel and unusual punishment would be an
illegitimate exercise of the Congress‘ broad spending power. But no such claim can be or is
made here. Were South Dakota to succumb to the blandishments offered by Congress and raise
its drinking age to 21, the State‘s action in so doing would not violate the constitutional rights of
anyone.
Our decisions have recognized that in some circumstances the financial inducement offered by
Congress might be so coercive as to pass the point at which ―pressure turns into compulsion.‖
Here, however, Congress has directed only that a State desiring to establish a minimum drinking
age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner
contends that the coercive nature of this program is evident from the degree of success it has
achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is
unconstitutional simply by reason of its success in achieving the congressional objective.
When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen
course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under
37
specified highway grant programs, the argument as to coercion is shown to be more rhetoric than
fact.
Here Congress has offered relatively mild encouragement to the States to enact higher minimum
drinking ages than they would otherwise choose. But the enactment of such laws remains the
prerogative of the States not merely in theory but in fact. Even if Congress might lack the power
to impose a national minimum drinking age directly, we conclude that encouragement to state
action found in § 158 is a valid use of the spending power.
JUSTICE O‘CONNOR, dissenting.
[Section 158] is not a condition on spending reasonably related to the expenditure of federal
funds and cannot be justified on that ground. Rather, it is an attempt to regulate the sale of liquor,
an attempt that lies outside Congress‘ power to regulate commerce because it falls within the
ambit of § 2 of the Twenty-first Amendment.
[The] Court‘s application of the requirement that the condition imposed be reasonably related to
the purpose for which the funds are expended is cursory and unconvincing.… In my view,
establishment of a minimum drinking age of 21 is not sufficiently related to interstate highway
construction to justify so conditioning funds appropriated for that purpose.
[The] Court asserts the reasonableness of the relationship between the supposed purpose of the
expenditure—―safe interstate travel‖—and the drinking age condition. The Court reasons that
Congress wishes that the roads it builds may be used safely, that drunken drivers threaten
highway safety, and that young people are more likely to drive while under the influence of
alcohol under existing law than would be the case if there were a uniform national drinking age
of 21. It hardly needs saying, however, that if the purpose of § 158 is to deter drunken driving, it
is far too over and under-inclusive. It is over-inclusive because it stops teenagers from drinking
even when they are not about to drive on interstate highways. It is under-inclusive because
teenagers pose only a small part of the drunken driving problem in this Nation.
When Congress appropriates money to build a highway, it is entitled to insist that the highway be
a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State
impose or change regulations in other areas of the State‘s social and economic life because of an
attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise,
the Congress could effectively regulate almost any area of a State‘s social, political, or economic
life on the theory that use of the interstate transportation system is somehow enhanced. If, for
example, the United States were to condition highway moneys upon moving the state capital, I
suppose it might argue that interstate transportation is facilitated by locating local governments
in places easily accessible to interstate highways—or, conversely, that highways might become
overburdened if they had to carry traffic to and from the state capital. In my mind, such a
relationship is hardly more attenuated than the one which the Court finds supports § 158….
The appropriate inquiry … is whether the spending requirement or prohibition is a condition on a
grant or whether it is regulation. The difference turns on whether the requirement specifies in
some way how the money should be spent, so that Congress‘ intent in making the grant will be
38
effectuated. Congress has no power under the Spending Clause to impose requirements on a
grant that go beyond specifying how the money should be spent. A requirement that is not such a
specification is not a condition, but a regulation, which is valid only if it falls within one of
Congress‘ delegated regulatory powers.
If the spending power is to be limited only by Congress‘ notion of the general welfare, the
reality, given the vast financial resources of the Federal Government, is that the Spending Clause
gives ―power to the Congress to tear down the barriers, to invade the states‘ jurisdiction, and to
become a parliament of the whole people, subject to no restrictions save such as are selfimposed.‖ Butler, 297 U.S. at 78….
The immense size and power of the Government of the United States ought not obscure its
fundamental character. It remains a Government of enumerated powers. McCulloch. Because §
158 cannot be justified as an exercise of any power delegated to the Congress, it is not
authorized by the Constitution. The Court errs in holding it to be the law of the land, and I
respectfully dissent.
[The dissenting opinion of JUSTICE BRENNAN, which was limited to the Twenty-First
Amendment issue, is omitted.]
39
NATIONAL FEDERATION OF INDEPENDENT BUSINESS
v.
SEBELIUS
132 S. Ct. 2566 (June 28, 2012)
CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the Court
with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which JUSTICES BREYER AND
KAGAN join, and an opinion with respect to Parts III–A, III–B, and III–D.
Today we resolve constitutional challenges to two provisions of the Patient Protection and Affordable
Care Act of 2010: the individual mandate, which requires individuals to purchase a health insurance
policy providing a minimum level of coverage; and the Medicaid expansion, which gives funds to the
States on the condition that they provide specified health care to all citizens whose income falls below a
certain threshold. We do not consider whether the Act embodies sound policies. That judgment is
entrusted to the Nation‘s elected leaders. We ask only whether Congress has the power under the
Constitution to enact the challenged provisions.
In our federal system, the National Government possesses only limited powers; the States and the people
retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that ―the question
respecting the extent of the powers actually granted‖ to the Federal Government ―is perpetually arising,
and will probably continue to arise, as long as our system shall exist.‖ McCulloch. In this case we must
again determine whether the Constitution grants Congress powers it now asserts, but which many States
and individuals believe it does not possess. Resolving this controversy requires us to examine both the
limits of the Government‘s power, and our own limited role in policing those boundaries.
The Federal Government ―is acknowledged by all to be one of enumerated powers.‖ Id. That is, rather
than granting general authority to perform all the conceivable functions of government, the Constitution
lists, or enumerates, the Federal Government‘s powers. Congress may, for example, ―coin Money,‖
―establish Post Offices,‖ and ―raise and support Armies.‖ Art. I, § 8, cls. 5, 7, 12. The enumeration of
powers is also a limitation of powers, because ―[t]he enumeration presupposes something not
enumerated.‖ Gibbons v. Ogden. The Constitution‘s express conferral of some powers makes clear that it
does not grant others. And the Federal Government ―can exercise only the powers granted to it.‖
McCulloch.
Today, the restrictions on government power foremost in many Americans‘ minds are likely to be
affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into
play, however, only where the Government possesses authority to act in the first place. If no enumerated
power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate
any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution….
This case concerns two powers that the Constitution does grant the Federal Government, but which must
be read carefully to avoid creating a general federal authority…. The Constitution authorizes Congress to
―regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.‖ Art.
I, § 8, cl. 3. Our precedents read that to mean that Congress may regulate ―the channels of interstate
commerce,‖ ―persons or things in interstate commerce,‖ and ―those activities that substantially affect
interstate commerce.‖ Morrison. The power over activities that substantially affect interstate commerce
can be expansive. That power has been held to authorize federal regulation of such seemingly local
matters as a farmer‘s decision to grow wheat for himself and his livestock, and a loan shark‘s extortionate
40
collections from a neighborhood butcher shop. See Wickard; Perez v. United States, 402 U.S. 146 (1971).
Congress may also ―lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States.‖ U.S. Const., Art. I, § 8, cl. 1. Put simply,
Congress may tax and spend. This grant gives the Federal Government considerable influence even in
areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it
cannot authorize, forbid, or otherwise control. And in exercising its spending power, Congress may offer
funds to the States, and may condition those offers on compliance with specified conditions. These offers
may well induce the States to adopt policies that the Federal Government itself could not impose. See,
e.g., South Dakota v. Dole (conditioning federal highway funds on States raising their drinking age to 21).
The reach of the Federal Government‘s enumerated powers is broader still because the Constitution
authorizes Congress to ―make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers.‖ Art. I, § 8, cl. 18. We have long read this provision to give Congress great latitude
in exercising its powers: ―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.‖ McCulloch.
Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of
the Nation‘s elected leaders. Proper respect for a coordinate branch of the government requires that we
strike down an Act of Congress only if the lack of constitutional authority to pass the act in question is
clearly demonstrated. Members of this Court are vested with the authority to interpret the law; we
possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted
to our Nation‘s elected leaders, who can be thrown out of office if the people disagree with them. It is not
our job to protect the people from the consequences of their political choices.
Our deference in matters of policy cannot, however, become abdication in matters of law. ―The powers of
the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the
constitution is written.‖ Marbury. Our respect for Congress‘s policy judgments thus can never extend so
far as to disavow restraints on federal power that the Constitution carefully constructed. ―The peculiar
circumstances of the moment may render a measure more or less wise, but cannot render it more or less
constitutional.‖ Chief Justice John Marshall, A Friend of the Constitution No. V, ALEXANDRIA GAZETTE,
July 5, 1819. And there can be no question that it is the responsibility of this Court to enforce the limits
on federal power by striking down acts of Congress that transgress those limits. Marbury.
The questions before us must be considered against the background of these basic principles.
I
In 2010, Congress enacted the Patient Protection and Affordable Care Act. The Act aims to increase the
number of Americans covered by health insurance and decrease the cost of health care. The Act‘s 10 titles
stretch over 900 pages and contain hundreds of provisions. This case concerns constitutional challenges to
two key provisions, commonly referred to as the individual mandate and the Medicaid expansion.
The individual mandate requires most Americans to maintain ―minimum essential‖ health insurance
coverage. 26 U.S.C. § 5000A. The mandate does not apply to some individuals, such as prisoners and
undocumented aliens. Many individuals will receive the required coverage through their employer, or
from a government program such as Medicaid or Medicare. But for individuals who are not exempt and
do not receive health insurance through a third party, the means of satisfying the requirement is to
purchase insurance from a private company.
Beginning in 2014, those who do not comply with the mandate must make a ―shared responsibility
41
payment‖ to the Federal Government. That payment, which the Act describes as a ―penalty,‖ is
calculated as a percentage of household income, subject to a floor based on a specified dollar amount and
a ceiling based on the average annual premium the individual would have to pay for qualifying private
health insurance…. The Act provides that the penalty will be paid to the Internal Revenue Service with an
individual‘s taxes, and ―shall be assessed and collected in the same manner‖ as tax penalties, such as the
penalty for claiming too large an income tax refund. The Act, however, bars the IRS from using several
of its normal enforcement tools, such as criminal prosecutions and levies. And some individuals who are
subject to the mandate are nonetheless exempt from the penalty—for example, those with income below a
certain threshold and members of Indian tribes.
On the day the President signed the Act into law, Florida and 12 other States filed a complaint in the
Federal District Court for the Northern District of Florida. Those plaintiffs—who are both respondents
and petitioners here, depending on the issue—were subsequently joined by 13 more States, several
individuals, and the National Federation of Independent Business. The plaintiffs alleged, among other
things, that the individual mandate provisions of the Act exceeded Congress‘s powers under Article I of
the Constitution….
The second provision of the Affordable Care Act directly challenged here is the Medicaid expansion.
Enacted in 1965, Medicaid offers federal funding to States to assist pregnant women, children, needy
families, the blind, the elderly, and the disabled in obtaining medical care…. The Affordable Care Act
expands the scope of the Medicaid program and increases the number of individuals the States must
cover…. Along with their challenge to the individual mandate, the state plaintiffs in the Eleventh Circuit
argued that the Medicaid expansion exceeds Congress‘s constitutional powers.
II
[As a preliminary matter, CHIEF JUSTICE ROBERTS determined that because Congress labeled the
individual mandate a ―penalty,‖ it did not constitute a tax within the meaning of the Anti–Injunction Act,
which provides that ―no suit for the purpose of restraining the assessment or collection of any tax shall be
maintained in any court by any person, whether or not such person is the person against whom such tax
was assessed.‖ 26 U.S.C. § 7421(a).]
III
The Government advances two theories for the proposition that Congress had constitutional authority to
enact the individual mandate. First, the Government argues that Congress had the power to enact the
mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health
insurance because the failure to do so affects interstate commerce, and could undercut the Affordable
Care Act‘s other reforms. Second, the Government argues that if the commerce power does not support
the mandate, we should nonetheless uphold it as an exercise of Congress‘s power to tax. According to the
Government, even if Congress lacks the power to direct individuals to buy insurance, the only effect of
the individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld as a
tax.
A
The Government‘s first argument is that the individual mandate is a valid exercise of Congress‘s power
under the Commerce Clause and the Necessary and Proper Clause. According to the Government, the
health care market is characterized by a significant cost-shifting problem. Everyone will eventually need
health care at a time and to an extent they cannot predict, but if they do not have insurance, they often will
not be able to pay for it. Because state and federal laws nonetheless require hospitals to provide a certain
degree of care to individuals without regard to their ability to pay, hospitals end up receiving
compensation for only a portion of the services they provide. To recoup the losses, hospitals pass on the
cost to insurers through higher rates, and insurers, in turn, pass on the cost to policy holders in the form of
42
higher premiums. Congress estimated that the cost of uncompensated care raises family health insurance
premiums, on average, by over $1,000 per year.
In the Affordable Care Act, Congress addressed the problem of those who cannot obtain insurance
coverage because of preexisting conditions or other health issues. It did so through the Act‘s ―guaranteedissue‖ and ―community-rating‖ provisions. These provisions together prohibit insurance companies from
denying coverage to those with such conditions or charging unhealthy individuals higher premiums than
healthy individuals.
The guaranteed-issue and community-rating reforms do not, however, address the issue of healthy
individuals who choose not to purchase insurance to cover potential health care needs. In fact, the reforms
sharply exacerbate that problem, by providing an incentive for individuals to delay purchasing health
insurance until they become sick, relying on the promise of guaranteed and affordable coverage. The
reforms also threaten to impose massive new costs on insurers, who are required to accept unhealthy
individuals but prohibited from charging them rates necessary to pay for their coverage. This will lead
insurers to significantly increase premiums on everyone.
The individual mandate was Congress‘s solution to these problems. By requiring that individuals
purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without
it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premiums
on average will be higher than their health care expenses. This allows insurers to subsidize the costs of
covering the unhealthy individuals the reforms require them to accept. The Government claims that
Congress has power under the Commerce and Necessary and Proper Clauses to enact this solution.
1
The path of our Commerce Clause decisions has not always run smooth, see Lopez, but it is now well
established that Congress has broad authority under the Clause. We have recognized, for example, that
―[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among
the states,‖ but extends to activities that ―have a substantial effect on interstate commerce.‖ Darby.
Congress‘s power, moreover, is not limited to regulation of an activity that by itself substantially affects
interstate commerce, but also extends to activities that do so only when aggregated with similar activities
of others. See Wickard.
Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide
variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on
that power to compel individuals not engaged in commerce to purchase an unwanted product. Legislative
novelty is not necessarily fatal; there is a first time for everything. But sometimes the most telling
indication of a severe constitutional problem is the lack of historical precedent for Congress‘s action. At
the very least, we should ―pause to consider the implications of the Government‘s arguments‖ when
confronted with such new conceptions of federal power. Lopez.
The Constitution grants Congress the power to ―regulate Commerce‖ (emphasis added). The power to
regulate commerce presupposes the existence of commercial activity to be regulated. If the power to
―regulate‖ something included the power to create it, many of the provisions in the Constitution would be
superfluous. For example, the Constitution gives Congress the power to ―coin Money,‖ in addition to the
power to ―regulate the Value thereof.‖ And it gives Congress the power to ―raise and support Armies‖ and
to ―provide and maintain a Navy,‖ in addition to the power to ―make Rules for the Government and
Regulation of the land and naval Forces.‖ If the power to regulate the armed forces or the value of money
included the power to bring the subject of the regulation into existence, the specific grant of such powers
would have been unnecessary….
43
Our precedent also reflects this understanding. As expansive as our cases construing the scope of the
commerce power have been, they all have one thing in common: They uniformly describe the power as
reaching ―activity.‖ It is nearly impossible to avoid the word when quoting them….
The individual mandate, however, does not regulate existing commercial activity. It instead compels
individuals to become active in commerce by purchasing a product, on the ground that their failure to do
so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate
individuals precisely because they are doing nothing would open a new and potentially vast domain to
congressional authority. Every day individuals do not do an infinite number of things. In some cases they
decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal
regulation by pointing to the effect of inaction on commerce would bring countless decisions an
individual could potentially make within the scope of federal regulation, and—under the Government‘s
theory—empower Congress to make those decisions for him.
Applying the Government‘s logic to the familiar case of Wickard v. Filburn shows how far that logic
would carry us from the notion of a government of limited powers. In Wickard, the Court famously
upheld a federal penalty imposed on a farmer for growing wheat for consumption on his own farm….
Wickard has long been regarded as ―perhaps the most far reaching example of Commerce Clause
authority over intrastate activity,‖ Lopez, but the Government‘s theory in this case would go much
further…. The farmer in Wickard was at least actively engaged in the production of wheat, and the
Government could regulate that activity because of its effect on commerce. The Government‘s theory
here would effectively override that limitation, by establishing that individuals may be regulated under
the Commerce Clause whenever enough of them are not doing something the Government would have
them do.
Indeed, the Government‘s logic would justify a mandatory purchase to solve almost any problem. To
consider a different example in the health care market, many Americans do not eat a balanced diet. That
group makes up a larger percentage of the total population than those without health insurance. The
failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure
of the uninsured to purchase insurance. Those increased costs are borne in part by other Americans who
must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem
by ordering everyone to buy insurance. Under the Government‘s theory, Congress could address the diet
problem by ordering everyone to buy vegetables….
To an economist, perhaps, there is no difference between activity and inactivity; both have measurable
economic effects on commerce. But the distinction between doing something and doing nothing would
not have been lost on the Framers, who were practical statesmen, not metaphysical philosophers…. The
Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our
decisions and Congress‘s actions have reflected this understanding. There is no reason to depart from that
understanding now.
The Government sees things differently. It argues that because sickness and injury are unpredictable but
unavoidable, ―the uninsured as a class are active in the market for health care, which they regularly seek
and obtain.‖ The individual mandate ―merely regulates how individuals finance and pay for that active
participation—requiring that they do so through insurance, rather than through attempted self-insurance
with the back-stop of shifting costs to others.‖
The individual mandate‘s regulation of the uninsured as a class is, in fact, particularly divorced from any
link to existing commercial activity. The mandate primarily affects healthy, often young adults who are
less likely to need significant health care and have other priorities for spending their money. It is precisely
because these individuals, as an actuarial class, incur relatively low health care costs that the mandate
44
helps counter the effect of forcing insurance companies to cover others who impose greater costs than
their premiums are allowed to reflect. If the individual mandate is targeted at a class, it is a class whose
commercial inactivity rather than activity is its defining feature.
The Government, however, claims that this does not matter. The Government regards it as sufficient to
trigger Congress‘s authority that almost all those who are uninsured will, at some unknown point in the
future, engage in a health care transaction. Asserting that ―[t]here is no temporal limitation in the
Commerce Clause,‖ the Government argues that because ―[e]veryone subject to this regulation is in or
will be in the health care market,‖ they can be ―regulated in advance.‖ …
Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that
does not authorize Congress to direct them to purchase particular products in those or other markets
today. The Commerce Clause is not a general license to regulate an individual from cradle to grave,
simply because he will predictably engage in particular transactions. Any police power to regulate
individuals as such, as opposed to their activities, remains vested in the States.
The Government argues that the individual mandate can be sustained as a sort of exception to this rule,
because health insurance is a unique product. According to the Government, upholding the individual
mandate would not justify mandatory purchases of items such as cars or broccoli because, as the
Government puts it, ―health insurance is not purchased for its own sake like a car or broccoli; it is a
means of financing health-care consumption and covering universal risks.‖ But cars and broccoli are no
more purchased for their ―own sake‖ than health insurance. They are purchased to cover the need for
transportation and food.
The Government says that health insurance and health care financing are ―inherently integrated.‖ But that
does not mean the compelled purchase of the first is properly regarded as a regulation of the second. No
matter how ―inherently integrated‖ health insurance and health care consumption may be, they are not the
same thing: They involve different transactions, entered into at different times, with different providers.
And for most of those targeted by the mandate, significant health care needs will be years, or even
decades, away. The proximity and degree of connection between the mandate and the subsequent
commercial activity is too lacking to justify an exception of the sort urged by the Government. The
individual mandate forces individuals into commerce precisely because they elected to refrain from
commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ―regulate
Commerce.‖
2
The Government next contends that Congress has the power under the Necessary and Proper Clause to
enact the individual mandate because the mandate is an ―integral part of a comprehensive scheme of
economic regulation‖—the guaranteed-issue and community-rating insurance reforms. Under this
argument, it is not necessary to consider the effect that an individual‘s inactivity may have on interstate
commerce; it is enough that Congress regulate commercial activity in a way that requires regulation of
inactivity to be effective.
The power to ―make all Laws which shall be necessary and proper for carrying into Execution‖ the
powers enumerated in the Constitution, Art. I, § 8, cl. 18, vests Congress with authority to enact
provisions ―incidental to the [enumerated] power, and conducive to its beneficial exercise,‖ McCulloch.
Although the Clause gives Congress authority to ―legislate on that vast mass of incidental powers which
must be involved in the constitution,‖ it does not license the exercise of any ―great substantive and
independent power[s]‖ beyond those specifically enumerated. Id. Instead, the Clause is merely a
declaration, for the removal of all uncertainty, that the means of carrying into execution those powers
otherwise granted are included in the grant.
45
As our jurisprudence under the Necessary and Proper Clause has developed, we have been very
deferential to Congress‘s determination that a regulation is ―necessary.‖ We have thus upheld laws that
are ―convenient, or useful or conducive to the authority‘s beneficial exercise.‖ Comstock (quoting
McCulloch). But we have also carried out our responsibility to declare unconstitutional those laws that
undermine the structure of government established by the Constitution. Such laws, which are not
―consistent with the letter and spirit of the constitution,‖ McCulloch, are not proper means for carrying
into Execution Congress‘s enumerated powers. Rather, they are, in the words of The Federalist, merely
acts of usurpation which deserve to be treated as such. The Federalist No. 33 (A. Hamilton).
Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper
Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under
that Clause involved exercises of authority derivative of, and in service to, a granted power. For example,
we have upheld provisions permitting continued confinement of those already in federal custody when
they could not be safely released, Comstock; criminalizing bribes involving organizations receiving
federal funds, Sabri v. United States, 541 U.S. 600 (2004); and tolling state statutes of limitations while
cases are pending in federal court, Jinks v. Richland County, 538 U.S. 456 (2003). The individual
mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the
exercise of an enumerated power.
This is in no way an authority that is ―narrow in scope,‖ Comstock, or ―incidental‖ to the exercise of the
commerce power, McCulloch. Rather, such a conception of the Necessary and Proper Clause would work
a substantial expansion of federal authority. No longer would Congress be limited to regulating under the
Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal
regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its
regulatory scope those who otherwise would be outside of it. Even if the individual mandate is
―necessary‖ to the Act‘s insurance reforms, such an expansion of federal power is not a ―proper‖ means
for making those reforms effective.
The Government relies primarily on our decision in Gonzales v. Raich. In Raich, we considered
comprehensive legislation to regulate the interstate market in marijuana…. Congress‘s attempt to
regulate the interstate market for marijuana would … have been substantially undercut if it could not also
regulate intrastate possession and consumption. Accordingly, we recognized that ―Congress was acting
well within its authority‖ under the Necessary and Proper Clause even though its ―regulation ensnare[d]
some purely intrastate activity.‖ Raich thus did not involve the exercise of any ―great substantive and
independent power,‖ McCulloch, of the sort at issue here. Instead, it concerned only the constitutionality
of ―individual applications of a concededly valid statutory scheme.‖ Raich (emphasis added).
Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure
to purchase health insurance, neither can it be upheld as a ―necessary and proper‖ component of the
insurance reforms. The commerce power thus does not authorize the mandate.
B
That is not the end of the matter. Because the Commerce Clause does not support the individual mandate,
it is necessary to turn to the Government‘s second argument: that the mandate may be upheld as within
Congress‘s enumerated power to ―lay and collect Taxes.‖ Art. I, § 8, cl. 1.
The Government‘s tax power argument asks us to view the statute differently than we did in considering
its commerce power theory. In making its Commerce Clause argument, the Government defended the
mandate as a regulation requiring individuals to purchase health insurance. The Government does not
claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to
46
read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who
do not buy that product.
The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a
law that reads ―no vehicles in the park‖ might, or might not, ban bicycles in the park. And it is well
established that if a statute has two possible meanings, one of which violates the Constitution, courts
should adopt the meaning that does not do so. Justice Story said that 180 years ago: ―No court ought,
unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a
violation, however unintentional, of the constitution.‖ Parsons v. Bedford, 3 Pet. 433 (1830). Justice
Holmes made the same point a century later: ―[T]he rule is settled that as between two possible
interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain
duty is to adopt that which will save the Act.‖ Blodgett v. Holden, 275 U.S. 142 (1927) (concurring
opinion).
The most straightforward reading of the mandate is that it commands individuals to purchase insurance.
After all, it states that individuals ―shall‖ maintain health insurance. Congress thought it could enact such
a command under the Commerce Clause, and the Government primarily defended the law on that basis.
But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under
our precedent, it is therefore necessary to ask whether the Government‘s alternative reading of the
statute—that it only imposes a tax on those without insurance—is a reasonable one.
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he
must make an additional payment to the IRS when he pays his taxes. That, according to the Government,
means the mandate can be regarded as establishing a condition—not owning health insurance—that
triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to
buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like
buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers
who do not have health insurance, it may be within Congress‘s constitutional power to tax.
The question is not whether that is the most natural interpretation of the mandate, but only whether it is a
fairly possible one. As we have explained, ―every reasonable construction must be resorted to, in order to
save a statute from unconstitutionality.‖ Hooper v. California, 155 U.S. 648 (1895). The Government
asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting
the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth
below.
C
The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many
respects. The ―shared responsibility payment,‖ as the statute entitles it, is paid into the Treasury by
―taxpayers‖ when they file their tax returns. It does not apply to individuals who do not pay federal
income taxes because their household income is less than the filing threshold in the Internal Revenue
Code. For taxpayers who do owe the payment, its amount is determined by such familiar factors as
taxable income, number of dependents, and joint filing status. The requirement to pay is found in the
Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and
collect it ―in the same manner as taxes.‖ This process yields the essential feature of any tax: it produces
at least some revenue for the Government. United States v. Kahriger, 345 U.S. 22 (1953). Indeed, the
payment is expected to raise about $4 billion per year by 2017.
It is of course true that the Act describes the payment as a ―penalty,‖ not a ―tax.‖ But while that label is
fatal to the application of the Anti–Injunction Act [see Part II, above], it does not determine whether the
payment may be viewed as an exercise of Congress‘s taxing power. It is up to Congress whether to apply
47
the Anti–Injunction Act to any particular statute, so it makes sense to be guided by Congress‘s choice of
label on that question. That choice does not, however, control whether an exaction is within Congress‘s
constitutional power to tax.
[The] shared responsibility payment may for constitutional purposes be considered a tax, not a penalty:
First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it
can never be more. It may often be a reasonable financial decision to make the payment rather than
purchase insurance, unlike the ―prohibitory‖ financial punishment in Bailey v. Drexel Furniture [The
Child Labor Tax Case]. Second, the individual mandate contains no scienter requirement. Third, the
payment is collected solely by the IRS through the normal means of taxation—except that the Service is
not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution. The
reasons the Court in Drexel Furniture held that what was called a ―tax‖ there was a penalty support the
conclusion that what is called a ―penalty‖ here may be viewed as a tax.
None of this is to say that the payment is not intended to affect individual conduct. Although the payment
will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that
seek to influence conduct are nothing new…. Today, federal and state taxes can compose more than half
the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking. And
we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off
shotguns. Indeed, every tax is in some measure regulatory. To some extent it interposes an economic
impediment to the activity taxed as compared with others not taxed. That § 5000A seeks to shape
decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the
taxing power.
In distinguishing penalties from taxes, this Court has explained that if the concept of penalty means
anything, it means punishment for an unlawful act or omission. While the individual mandate clearly aims
to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful.
Neither the Act nor any other law attaches negative legal consequences to not buying health insurance,
beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if
someone chooses to pay rather than obtain health insurance, they have fully complied with the law.
Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy
insurance. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That
Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that
Congress did not think it was creating four million outlaws. It suggests instead that the shared
responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health
insurance.
The joint dissenters argue that we cannot uphold § 5000A as a tax because Congress did not frame it as
such. In effect, they contend that even if the Constitution permits Congress to do exactly what we
interpret this statute to do, the law must be struck down because Congress used the wrong labels. An
example may help illustrate why labels should not control here. Suppose Congress enacted a statute
providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the
IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is
paid along with the taxpayer‘s income tax return. Those whose income is below the filing threshold need
not pay. The required payment is not called a ―tax,‖ a ―penalty,‖ or anything else. No one would doubt
that this law imposed a tax, and was within Congress‘s power to tax. That conclusion should not change
simply because Congress used the word ―penalty‖ to describe the payment….
Our precedent demonstrates that Congress had the power to impose the exaction in § 5000A under the
taxing power, and that § 5000A need not be read to do more than impose a tax. That is sufficient to
48
sustain it. The ―question of the constitutionality of action taken by Congress does not depend on recitals
of the power which it undertakes to exercise.‖ Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948)….
There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even
if only a tax, the payment under § 5000A(b) remains a burden that the Federal Government imposes for
an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to
regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to
impose a tax for not doing something.
Three considerations allay this concern. First, and most importantly, it is abundantly clear the
Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after
all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the
Constitution. The Court today holds that our Constitution protects us from federal regulation under the
Commerce Clause so long as we abstain from the regulated activity. But from its creation, the
Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le
Roy (Nov. 13, 1789) (―Our new Constitution is now established ... but in this world nothing can be said to
be certain, except death and taxes‖)….
Second, Congress‘s ability to use its taxing power to influence conduct is not without limits. A few of our
cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate
behavior otherwise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297
U.S. 1 (1936); Drexel Furniture. More often and more recently we have declined to closely examine the
regulatory motive or effect of revenue-raising measures. We have nonetheless maintained that there
comes a time in the extension of the penalizing features of the so-called tax when it loses its character as
such and becomes a mere penalty with the characteristics of regulation and punishment.… [W]e need not
here decide the precise point at which an exaction becomes so punitive that the taxing power does not
authorize it. It remains true, however, that the ―power to tax is not the power to destroy while this Court
sits.‖ Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928) (Holmes, J., dissenting)).
Third, although the breadth of Congress‘s power to tax is greater than its power to regulate commerce, the
taxing power does not give Congress the same degree of control over individual behavior. Once we
recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal
Government can bring its full weight to bear. Congress may simply command individuals to do as it
directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include
not only fines and imprisonment, but all the attendant consequences of being branded a criminal:
deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of
employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or
immigration disputes.
By contrast, Congress‘s authority under the taxing power is limited to requiring an individual to pay
money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to
compel or punish individuals subject to it. We do not make light of the severe burden that taxation—
especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless
leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax
levied on that choice.11
11
Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for
failing to do so (although not for declining to make the shared responsibility payment). But that does not show that
the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those
subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance
49
The Affordable Care Act‘s requirement that certain individuals pay a financial penalty for not obtaining
health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it
is not our role to forbid it, or to pass upon its wisdom or fairness.
D
JUSTICE GINSBURG questions the necessity of rejecting the Government‘s commerce power argument,
given that § 5000A can be upheld under the taxing power. But the statute reads more naturally as a
command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed
it. It is only because the Commerce Clause does not authorize such a command that it is necessary to
reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if
fairly possible, that § 5000A can be interpreted as a tax. Without deciding the Commerce Clause question,
I would find no basis to adopt such a saving construction.
The Federal Government does not have the power to order people to buy health insurance. Section 5000A
would therefore be unconstitutional if read as a command. The Federal Government does have the power
to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it
can reasonably be read as a tax.
IV
A
The States also contend that the Medicaid expansion exceeds Congress‘s authority under the Spending
Clause. They claim that Congress is coercing the States to adopt the changes it wants by threatening to
withhold all of a State‘s Medicaid grants, unless the State accepts the new expanded funding and
complies with the conditions that come with it. This, they argue, violates the basic principle that the
Federal Government may not compel the States to enact or administer a federal regulatory program.
There is no doubt that the Act dramatically increases state obligations under Medicaid. The current
Medicaid program requires States to cover only certain discrete categories of needy individuals—
pregnant women, children, needy families, the blind, the elderly, and the disabled. There is no mandatory
coverage for most childless adults, and the States typically do not offer any such coverage. The States
also enjoy considerable flexibility with respect to the coverage levels for parents of needy families. On
average States cover only those unemployed parents who make less than 37 percent of the federal poverty
level, and only those employed parents who make less than 63 percent of the poverty line.
The Medicaid provisions of the Affordable Care Act, in contrast, require States to expand their Medicaid
programs by 2014 to cover all individuals under the age of 65 with incomes below 133 percent of the
federal poverty line. The Act also establishes a new ―essential health benefits‖ package, which States
must provide to all new Medicaid recipients—a level sufficient to satisfy a recipient‘s obligations under
the individual mandate. The Affordable Care Act provides that the Federal Government will pay 100
percent of the costs of covering these newly eligible individuals through 2016. In the following years, the
federal payment level gradually decreases, to a minimum of 90 percent. In light of the expansion in
coverage mandated by the Act, the Federal Government estimates that its Medicaid spending will increase
by approximately $100 billion per year, nearly 40 percent above current levels.
The Spending Clause grants Congress the power ―to pay the Debts and provide for the ... general Welfare
of the United States.‖ U.S. Const., Art. I, § 8, cl. 1. We have long recognized that Congress may use this
power to grant federal funds to the States, and may condition such a grant upon the States‘ taking certain
and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting
tax.
50
actions that Congress could not require them to take. Such measures encourage a State to regulate in a
particular way, and influence a State‘s policy choices. The conditions imposed by Congress ensure that
the funds are used by the States to ―provide for the ... general Welfare‖ in the manner Congress intended.
At the same time, our cases have recognized limits on Congress‘s power under the Spending Clause to
secure state compliance with federal objectives. We have repeatedly characterized ... Spending Clause
legislation as much in the nature of a contract. The legitimacy of Congress‘s exercise of the spending
power thus rests on whether the State voluntarily and knowingly accepts the terms of the contract.
Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the
status of the States as independent sovereigns in our federal system….
That insight has led this Court to … scrutinize Spending Clause legislation to ensure that Congress is not
using financial inducements to exert a ―power akin to undue influence.‖ Steward Machine Co. v. Davis.
Congress may use its spending power to create incentives for States to act in accordance with federal
policies. But when ―pressure turns into compulsion,‖ id., the legislation runs contrary to our system of
federalism….
Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept
the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held
politically accountable for choosing to accept or refuse the federal offer. But when the State has no
choice, the Federal Government can achieve its objectives without accountability. Indeed, this danger is
heightened when Congress acts under the Spending Clause, because Congress can use that power to
implement federal policy it could not impose directly under its enumerated powers….
As our decision in Steward Machine confirms, Congress may attach appropriate conditions to federal
taxing and spending programs to preserve its control over the use of federal funds. In the typical case we
look to the States to defend their prerogatives by adopting the simple expedient of not yielding to federal
blandishments when they do not want to embrace the federal policies as their own. The States are separate
and independent sovereigns. Sometimes they have to act like it.
The States, however, argue that the Medicaid expansion is far from the typical case. They object that
Congress has crossed the line distinguishing encouragement from coercion in the way it has structured the
funding: Instead of simply refusing to grant the new funds to States that will not accept the new
conditions, Congress has also threatened to withhold those States‘ existing Medicaid funds. The States
claim that this threat serves no purpose other than to force unwilling States to sign up for the dramatic
expansion in health care coverage effected by the Act.
Given the nature of the threat and the programs at issue here, we must agree. We have upheld Congress‘s
authority to condition the receipt of funds on the States‘ complying with restrictions on the use of those
funds, because that is the means by which Congress ensures that the funds are spent according to its view
of the ―general Welfare.‖ Conditions that do not here govern the use of the funds, however, cannot be
justified on that basis. When, for example, such conditions take the form of threats to terminate other
significant independent grants, the conditions are properly viewed as a means of pressuring the States to
accept policy changes.
In South Dakota v. Dole, we considered a challenge to a federal law that threatened to withhold five
percent of a State‘s federal highway funds if the State did not raise its drinking age to 21. The Court
found that the condition was ―directly related to one of the main purposes for which highway funds are
expended—safe interstate travel.‖ Id. At the same time, the condition was not a restriction on how the
highway funds—set aside for specific highway improvement and maintenance efforts—were to be used.
We accordingly asked whether ―the financial inducement offered by Congress‖ was ―so coercive as to
51
pass the point at which pressure turns into compulsion.‖ Id. (quoting Steward Machine). By ―financial
inducement‖ the Court meant the threat of losing five percent of highway funds; no new money was
offered to the States to raise their drinking ages. We found that the inducement was not impermissibly
coercive, because Congress was offering only ―relatively mild encouragement to the States.‖ Dole. We
observed that ―all South Dakota would lose if she adheres to her chosen course as to a suitable minimum
drinking age is 5%‖ of her highway funds. Id. In fact, the federal funds at stake constituted less than half
of one percent of South Dakota‘s budget at the time. In consequence, ―we conclude[d] that [the]
encouragement to state action [was] a valid use of the spending power.‖ Id. Whether to accept the
drinking age change ―remain[ed] the prerogative of the States not merely in theory but in fact.‖ Id.
In this case, the financial ―inducement‖ Congress has chosen is much more than ―relatively mild
encouragement‖—it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State‘s
Medicaid plan does not comply with the Act‘s requirements, the Secretary of Health and Human Services
may declare that ―further payments will not be made to the State.‖ A State that opts out of the Affordable
Care Act‘s expansion in health care coverage thus stands to lose not merely ―a relatively small
percentage‖ of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20
percent of the average State‘s total budget, with federal funds covering 50 to 83 percent of those costs….
It is easy to see how the Dole Court could conclude that the threatened loss of less than half of one
percent of South Dakota‘s budget left that State with a ―prerogative‖ to reject Congress‘s desired policy,
―not merely in theory but in fact.‖ The threatened loss of over 10 percent of a State‘s overall budget, in
contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the
Medicaid expansion.12
JUSTICE GINSBURG claims that Dole is distinguishable because here ―Congress has not threatened to
withhold funds earmarked for any other program.‖ But that begs the question: The States contend that the
expansion is in reality a new program and that Congress is forcing them to accept it by threatening the
funds for the existing Medicaid program. We cannot agree that existing Medicaid and the expansion
dictated by the Affordable Care Act are all one program simply because Congress styled them as such. If
the expansion is not properly viewed as a modification of the existing Medicaid program, Congress‘s
decision to so title it is irrelevant.
Here, the Government claims that the Medicaid expansion is properly viewed merely as a modification of
the existing program because the States agreed that Congress could change the terms of Medicaid when
they signed on in the first place. The Government observes that the Social Security Act, which includes
the original Medicaid provisions, contains a clause expressly reserving ―[t]he right to alter, amend, or
repeal any provision‖ of that statute. So it does. But if Congress intends to impose a condition on the
grant of federal moneys, it must do so unambiguously. A State confronted with statutory language
reserving the right to ―alter‖ or ―amend‖ the pertinent provisions of the Social Security Act might
reasonably assume that Congress was entitled to make adjustments to the Medicaid program as it
developed. Congress has in fact done so, sometimes conditioning only the new funding, other times both
old and new.
The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program
was designed to cover medical services for four particular categories of the needy: the disabled, the blind,
the elderly, and needy families with dependent children. Previous amendments to Medicaid eligibility
merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid
is transformed into a program to meet the health care needs of the entire nonelderly population with
12
[T]he size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been
coerced into accepting that burden. ―Your money or your life‖ is a coercive proposition, whether you have a single
dollar in your pocket or $500.
52
income below 133 percent of the poverty level. It is no longer a program to care for the neediest among
us, but rather an element of a comprehensive national plan to provide universal health insurance
coverage.14
The Court in Steward Machine did not attempt to ―fix the outermost line‖ where persuasion gives way to
coercion. The Court found it ―[e]nough for present purposes that wherever the line may be, this statute is
within it.‖ We have no need to fix a line either. It is enough for today that wherever that line may be, this
statute is surely beyond it. Congress may not simply conscript state agencies into the national bureaucratic
army, and that is what it is attempting to do with the Medicaid expansion.
B
Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand
the availability of health care, and requiring that States accepting such funds comply with the conditions
on their use. What Congress is not free to do is to penalize States that choose not to participate in that new
program by taking away their existing Medicaid funding….
The question remains whether today‘s holding affects other provisions of the Affordable Care Act. In
considering that question, we seek to determine what Congress would have intended in light of the
Court‘s constitutional holding. The question here is whether Congress would have wanted the rest of the
Act to stand, had it known that States would have a genuine choice whether to participate in the new
Medicaid expansion. Unless it is evident that the answer is no, we must leave the rest of the Act intact.
We are confident that Congress would have wanted to preserve the rest of the Act. It is fair to say that
Congress assumed that every State would participate in the Medicaid expansion, given that States had no
real choice but to do so.… The Court today limits the financial pressure the Secretary may apply to
induce States to accept the terms of the Medicaid expansion. As a practical matter, that means States may
now choose to reject the expansion; that is the whole point. But that does not mean all or even any will….
We have no way of knowing how many States will accept the terms of the expansion, but we do not
believe Congress would have wanted the whole Act to fall, simply because some may choose not to
participate. The other reforms Congress enacted, after all, will remain fully operative as a law, and will
still function in a way consistent with Congress‘ basic objectives in enacting the statute. Confident that
Congress would not have intended anything different, we conclude that the rest of the Act need not fall in
light of our constitutional holding.
***
The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate
cannot be upheld as an exercise of Congress‘s power under the Commerce Clause. That Clause authorizes
Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it
is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount
of income, but choose to go without health insurance. Such legislation is within Congress‘s power to tax.
As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by
threatening existing Medicaid funding. Congress has no authority to order the States to regulate according
14
JUSTICE GINSBURG suggests that the States can have no objection to the Medicaid expansion, because ―Congress
could have repealed Medicaid and, thereafter, could have enacted Medicaid II, a new program combining the pre–
2010 coverage with the expanded coverage required by the ACA.‖ But it would certainly not be that easy. Practical
constraints would plainly inhibit, if not preclude, the Federal Government from repealing the existing program and
putting every feature of Medicaid on the table for political reconsideration. Such a massive undertaking would
hardly be ―ritualistic.‖
53
to its instructions. Congress may offer the States grants and require the States to comply with
accompanying conditions, but the States must have a genuine choice whether to accept the offer. The
States are given no such choice in this case: They must either accept a basic change in the nature of
Medicaid, or risk losing all Medicaid funding. The remedy for that constitutional violation is to preclude
the Federal Government from imposing such a sanction. That remedy does not require striking down
other portions of the Affordable Care Act.
The Framers created a Federal Government of limited powers, and assigned to this Court the duty of
enforcing those limits. The Court does so today. But the Court does not express any opinion on the
wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICES BREYER AND
KAGAN join in part.
I agree with THE CHIEF JUSTICE that the Anti–Injunction Act does not bar the Court‘s consideration of
this case, and that the minimum coverage provision is a proper exercise of Congress‘ taxing power. I
therefore join Parts I, II, and III–C of THE CHIEF JUSTICE‘s opinion. Unlike THE CHIEF JUSTICE, however,
I would hold, alternatively, that the Commerce Clause authorizes Congress to enact the minimum
coverage provision. I would also hold that the Spending Clause permits the Medicaid expansion exactly
as Congress enacted it….
Since 1937, our precedent has recognized Congress‘ large authority to set the Nation‘s course in the
economic and social welfare realm. THE CHIEF JUSTICE‘s crabbed reading of the Commerce Clause harks
back to the era in which the Court routinely thwarted Congress‘ efforts to regulate the national economy
in the interest of those who labor to sustain it. It is a reading that should not have staying power….
The large number of individuals without health insurance, Congress found, heavily burdens the national
health-care market. [T]he cost of emergency care or treatment for a serious illness generally exceeds what
an individual can afford to pay on her own. Unlike markets for most products, however, the inability to
pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as
well as professional obligations and embedded social norms, require hospitals and physicians to provide
care when it is most needed, regardless of the patient‘s ability to pay.
As a consequence, medical-care providers deliver significant amounts of care to the uninsured for which
the providers receive no payment. In 2008, for example, hospitals, physicians, and other health-care
professionals received no compensation for $43 billion worth of the $116 billion in care they
administered to those without insurance.
Health-care providers do not absorb these bad debts. Instead, they raise their prices, passing along the cost
of uncompensated care to those who do pay reliably: the government and private insurance companies. In
response, private insurers increase their premiums, shifting the cost of the elevated bills from providers
onto those who carry insurance. The net result: Those with health insurance subsidize the medical care of
those without it. As economists would describe what happens, the uninsured ―free ride‖ on those who pay
for health insurance….
States that undertake health-care reforms on their own thus risk placing themselves in a position of
economic disadvantage as compared with neighbors or competitors. Facing that risk, individual States are
unlikely to take the initiative in addressing the problem of the uninsured, even though solving that
problem is in all States‘ best interests. Congress‘ intervention was needed to overcome this collectiveaction impasse.
54
Aware that a national solution was required, Congress could have taken over the health-insurance market
by establishing a tax-and-spend federal program like Social Security. Such a program, commonly referred
to as a single-payer system (where the sole payer is the Federal Government), would have left little, if
any, room for private enterprise or the States. Instead of going this route, Congress enacted the ACA, a
solution that retains a robust role for private insurers and state governments. To make its chosen approach
work, however, Congress had to use some new tools, including a requirement that most individuals obtain
private health insurance coverage. As explained below, by employing these tools, Congress was able to
achieve a practical, altogether reasonable, solution….
Until today, this Court‘s pragmatic approach to judging whether Congress validly exercised its commerce
power was guided by two familiar principles. First, Congress has the power to regulate economic
activities ―that substantially affect interstate commerce.‖ Gonzales v. Raich. This capacious power
extends even to local activities that, viewed in the aggregate, have a substantial impact on interstate
commerce. See id.; Wickard; Jones & Laughlin Steel Corp.
Second, we owe a large measure of respect to Congress when it frames and enacts economic and social
legislation. When appraising such legislation, we ask only (1) whether Congress had a rational basis for
concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a
reasonable connection between the regulatory means selected and the asserted ends. In answering these
questions, we presume the statute under review is constitutional and may strike it down only on a ―plain
showing‖ that Congress acted irrationally. United States v. Morrison.
Straightforward application of these principles would require the Court to hold that the minimum
coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis
for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without
insurance consume billions of dollars of health-care products and services each year. Those goods are
produced, sold, and delivered largely by national and regional companies who routinely transact business
across state lines. The uninsured also cross state lines to receive care. Some have medical emergencies
while away from home. Others, when sick, go to a neighboring State that provides better care for those
who have not prepaid for care.
Not only do those without insurance consume a large amount of health care each year; critically, as earlier
explained, their inability to pay for a significant portion of that consumption drives up market prices,
foists costs on other consumers, and reduces market efficiency and stability. Given these far-reaching
effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or equivalent to
―doing nothing‖; it is, instead, an economic decision Congress has the authority to address under the
Commerce Clause.
The minimum coverage provision, furthermore, bears a reasonable connection to Congress‘ goal of
protecting the health-care market from the disruption caused by individuals who fail to obtain insurance.
By requiring those who do not carry insurance to pay a toll, the minimum coverage provision gives
individuals a strong incentive to insure. This incentive, Congress had good reason to believe, would
reduce the number of uninsured and, correspondingly, mitigate the adverse impact the uninsured have on
the national health-care market.
Congress also acted reasonably in requiring uninsured individuals, whether sick or healthy, either to
obtain insurance or to pay the specified penalty. As earlier observed, because every person is at risk of
needing care at any moment, all those who lack insurance, regardless of their current health status,
adversely affect the price of health care and health insurance. Moreover, an insurance-purchase
requirement limited to those in need of immediate care simply could not work. Insurance companies
would either charge these individuals prohibitively expensive premiums, or, if community-rating
55
regulations were in place, close up shop.
―Where we find that the legislators have a rational basis for finding a chosen regulatory scheme necessary
to the protection of commerce, our investigation is at an end.‖ Katzenbach. Congress‘ enactment of the
minimum coverage provision, which addresses a specific interstate problem in a practical, experienceinformed manner, easily meets this criterion.
Rather than evaluating the constitutionality of the minimum coverage provision in the manner established
by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce
power does not, THE CHIEF JUSTICE announces, permit Congress to ―compel individuals to become active
in commerce by purchasing a product.‖
THE CHIEF JUSTICE‘s novel constraint on Congress‘ commerce power gains no force from our precedent
and for that reason alone warrants disapprobation. But even assuming, for the moment, that Congress
lacks authority under the Commerce Clause to ―compel individuals not engaged in commerce to purchase
an unwanted product,‖ such a limitation would be inapplicable here. Everyone will, at some point,
consume health-care products and services. Thus, if THE CHIEF JUSTICE is correct that an insurancepurchase requirement can be applied only to those who ―actively‖ consume health care, the minimum
coverage provision fits the bill.
THE CHIEF JUSTICE does not dispute that all U.S. residents participate in the market for health services
over the course of their lives. But, THE CHIEF JUSTICE insists, the uninsured cannot be considered active
in the market for health care, because ―the proximity and degree of connection between the uninsured
today and their subsequent commercial activity is too lacking.‖
This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or
doctor‘s office each year. Nearly 90% will within five years. An uninsured‘s consumption of health care
is thus quite proximate: It is virtually certain to occur in the next five years and more likely than not to
occur this year. Equally evident, Congress has no way of separating those uninsured individuals who will
need emergency medical care today (surely their consumption of medical care is sufficiently imminent)
from those who will not need medical services for years to come….
Second, it is Congress‘ role, not the Court‘s, to delineate the boundaries of the market the Legislature
seeks to regulate. THE CHIEF JUSTICE defines the health-care market as including only those transactions
that will occur either in the next instant or within some (unspecified) proximity to the next instant. But
Congress could reasonably have viewed the market from a long-term perspective, encompassing all
transactions virtually certain to occur over the next decade, not just those occurring here and now.
Third, contrary to THE CHIEF JUSTICE‘s contention, our precedent does indeed support ―the proposition
that Congress may dictate the conduct of an individual today because of prophesied future activity.‖ Our
decisions … acknowledge Congress‘ authority, under the Commerce Clause, to direct the conduct of an
individual today (the farmer in Wickard, stopped from growing excess wheat; the plaintiff in Raich,
ordered to cease cultivating marijuana) because of a prophesied future transaction (the eventual sale of
that wheat or marijuana in the interstate market). Congress‘ actions are even more rational in this case,
where the future activity (the consumption of medical care) is certain to occur, the sole uncertainty being
the time the activity will take place….
THE CHIEF JUSTICE also calls the minimum coverage provision an illegitimate effort to make young,
healthy individuals subsidize insurance premiums paid by the less hale and hardy. This complaint, too, is
spurious. Under the current health-care system, healthy persons who lack insurance receive a benefit for
which they do not pay: They are assured that, if they need it, emergency medical care will be available,
56
although they cannot afford it. Those who have insurance bear the cost of this guarantee. By requiring the
healthy uninsured to obtain insurance or pay a penalty structured as a tax, the minimum coverage
provision ends the free ride these individuals currently enjoy.
In the fullness of time, moreover, today‘s young and healthy will become society‘s old and infirm.
Viewed over a lifespan, the costs and benefits even out: The young who pay more than their fair share
currently will pay less than their fair share when they become senior citizens. And even if, as undoubtedly
will be the case, some individuals, over their lifespans, will pay more for health insurance than they
receive in health services, they have little to complain about, for that is how insurance works. Every
insured person receives protection against a catastrophic loss, even though only a subset of the covered
class will ultimately need that protection….
Requiring individuals to obtain insurance unquestionably regulates the interstate health-insurance and
health-care markets, both of them in existence well before the enactment of the ACA. Thus, the
―something to be regulated‖ was surely there when Congress created the minimum coverage provision.6
Nor does our case law toe the activity versus inactivity line. In Wickard, for example, we upheld the
penalty imposed on a farmer who grew too much wheat, even though the regulation had the effect of
compelling farmers to purchase wheat in the open market.
In concluding that the Commerce Clause does not permit Congress to regulate commercial ―inactivity,‖
and therefore does not allow Congress to adopt the practical solution it devised for the health-care
problem, THE CHIEF JUSTICE views the Clause as a technical legal conception, precisely what our case
law tells us not to do. This Court‘s former endeavors to impose categorical limits on the commerce
power have not fared well. In several pre-New Deal cases, the Court attempted to cabin Congress‘
Commerce Clause authority by distinguishing ―commerce‖ from activity once conceived to be
noncommercial, notably, ―production,‖ ―mining,‖ and ―manufacturing.‖ See, e.g., United States v. E.C.
Knight Co. (―Commerce succeeds to manufacture, and is not a part of it.‖); Carter v. Carter Coal Co.
(―Mining brings the subject matter of commerce into existence. Commerce disposes of it.‖). The Court
also sought to distinguish activities having a ―direct‖ effect on interstate commerce, and for that reason,
subject to federal regulation, from those having only an ―indirect‖ effect, and therefore not amenable to
federal control. See, e.g., A.L.A. Schechter Poultry Corp. v. United States (―[T]he distinction between
direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a
fundamental one.‖).
These line-drawing exercises were untenable, and the Court long ago abandoned them. ―Questions of the
power of Congress under the Commerce Clause,‖ we held in Wickard, ―are not to be decided by reference
to any formula which would give controlling force to nomenclature such as ‗production‘ and ‗indirect‘
and foreclose consideration of the actual effects of the activity in question upon interstate commerce.‖
Failing to learn from this history, THE CHIEF JUSTICE plows ahead with his formalistic distinction
between those who are ―active in commerce‖ and those who are not.
It is not hard to show the difficulty courts (and Congress) would encounter in distinguishing statutes that
regulate ―activity‖ from those that regulate ―inactivity.‖ Take this case as an example. An individual who
opts not to purchase insurance from a private insurer can be seen as actively selecting another form of
insurance: self-insurance. The minimum coverage provision could therefore be described as regulating
THE CHIEF JUSTICE‘s reliance on the quoted passages of the Constitution is also dubious on other grounds. The
power to ―regulate the Value‖ of the national currency presumably includes the power to increase the currency‘s
worth—i.e., to create value where none previously existed. And if the power to ―regulate the land and naval Forces‖
presupposes ―there is already in existence something to be regulated,‖ i.e., an Army and a Navy, does Congress lack
authority to create an Air Force?
6
57
activists in the self-insurance market. Wickard is another example. Did the statute there at issue target
activity (the growing of too much wheat) or inactivity (the farmer‘s failure to purchase wheat in the
marketplace)? If anything, the Court‘s analysis suggested the latter.
Underlying THE CHIEF JUSTICE‘s view that the Commerce Clause must be confined to the regulation of
active participants in a commercial market is a fear that the commerce power would otherwise know no
limits. This concern is unfounded.
First, THE CHIEF JUSTICE could certainly uphold the individual mandate without giving Congress carte
blanche to enact any and all purchase mandates. As several times noted, the unique attributes of the
health-care market render everyone active in that market and give rise to a significant free-riding problem
that does not occur in other markets. Nor would the commerce power be unbridled, absent THE CHIEF
JUSTICE‘s ―activity‖ limitation. Congress would remain unable to regulate noneconomic conduct that has
only an attenuated effect on interstate commerce and is traditionally left to state law. See Lopez;
Morrison.
Supplementing these legal restraints is a formidable check on congressional power: the democratic
process. As the controversy surrounding the passage of the Affordable Care Act attests, purchase
mandates are likely to engender political resistance. This prospect is borne out by the behavior of state
legislators. Despite their possession of unquestioned authority to impose mandates, state governments
have rarely done so.
When contemplated in its extreme, almost any power looks dangerous. The commerce power,
hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and
dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the
hypothetical and unreal possibility of a vegetarian state as a credible reason to deny Congress the
authority ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious
logic when he cites the broccoli [example] as a reason to deny Congress the power to pass the individual
mandate. Cf. Robert Bork, THE TEMPTING OF AMERICA (1990) (―Judges and lawyers live on the slippery
slope of analogies; they are not supposed to ski it to the bottom.‖)….
For the reasons explained above, the minimum coverage provision is valid Commerce Clause legislation.
When viewed as a component of the entire ACA, the provision‘s constitutionality becomes even plainer.
The Necessary and Proper Clause ―empowers Congress to enact laws in effectuation of its commerce
power that are not within its authority to enact in isolation.‖ Raich (SCALIA, J., concurring in judgment).
See also id. (a challenged statutory provision fits within Congress‘ commerce authority if it is an
―essential part of a larger regulation of economic activity,‖ such that, in the absence of the provision, ―the
regulatory scheme could be undercut‖ (quoting Lopez)).
Recall that one of Congress‘ goals in enacting the Affordable Care Act was to eliminate the insurance
industry‘s practice of charging higher prices or denying coverage to individuals with preexisting medical
conditions. The commerce power allows Congress to ban this practice, a point no one disputes. See
United States v. South–Eastern Underwriters Assn., 322 U.S. 533 (1944) (Congress may regulate ―the
methods by which interstate insurance companies do business.‖).
Congress knew, however, that simply barring insurance companies from relying on an applicant‘s
medical history would not work in practice. Without the individual mandate, Congress learned,
guaranteed-issue and community-rating requirements would trigger an adverse-selection death-spiral in
the health-insurance market: Insurance premiums would skyrocket, the number of uninsured would
increase, and insurance companies would exit the market. When complemented by an insurance mandate,
58
on the other hand, guaranteed issue and community rating would work as intended, increasing access to
insurance and reducing uncompensated care. The minimum coverage provision is thus an ―essential part
of a larger regulation of economic activity‖; without the provision, ―the regulatory scheme would be
undercut.‖ Raich.
Asserting that the Necessary and Proper Clause does not authorize the minimum coverage provision, THE
CHIEF JUSTICE focuses on the word ―proper.‖ If long on rhetoric, THE CHIEF JUSTICE‘s argument is short
on substance…. THE CHIEF JUSTICE [does not] pause to explain why the power to direct either the
purchase of health insurance or, alternatively, the payment of a penalty collectible as a tax is more farreaching than other implied powers this Court has found meet under the Necessary and Proper Clause.
These powers include the power to enact criminal laws, see, e.g., United States v. Fox, 95 U.S. 670
(1878); the power to imprison, including civil imprisonment, see, e.g., Comstock; and the power to create
a national bank, see McCulloch. In failing to explain why the individual mandate threatens our
constitutional order, THE CHIEF JUSTICE disserves future courts. How is a judge to decide, when ruling on
the constitutionality of a federal statute, whether Congress employed an ―independent power‖ or merely a
―derivative‖ one? Whether the power used is ―substantive‖ or just ―incidental‖? The instruction THE
CHIEF JUSTICE, in effect, provides lower courts: You will know it when you see it.
It is more than exaggeration to suggest that the minimum coverage provision improperly intrudes on
―essential attributes of state sovereignty.‖ First, the Affordable Care Act does not operate ―in an area
such as criminal law enforcement or education where States historically have been sovereign.‖ Lopez. As
evidenced by Medicare, Medicaid, the Employee Retirement Income Security Act of 1974 (ERISA), and
the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Federal Government plays
a lead role in the health-care sector, both as a direct payer and as a regulator. Second, and perhaps most
important, the minimum coverage provision, along with other provisions of the ACA, addresses the very
sort of interstate problem that made the commerce power essential in our federal system…. Far from
trampling on States‘ sovereignty, the ACA attempts a federal solution for the very reason that the States,
acting separately, cannot meet the need. Notably, the ACA serves the general welfare of the people of the
United States while retaining a prominent role for the States.
In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples‘
representatives in both the States and the Federal Government. See, e.g., Carter Coal Co.; Dagenhart;
Lochner v. New York, 198 U.S. 45 (1905). THE CHIEF JUSTICE‘s Commerce Clause opinion, and even
more so the joint dissenters‘ reasoning, bear a disquieting resemblance to those long-overruled decisions.
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress‘ power to tax and
spend ―for the ... general Welfare of the United States.‖ Art. I, § 8, cl. 1. I concur in that determination,
which makes THE CHIEF JUSTICE‘s Commerce Clause essay all the more puzzling. Why should THE
CHIEF JUSTICE strive so mightily to hem in Congress‘ capacity to meet the new problems arising
constantly in our ever-developing modern economy? I find no satisfying response to that question in his
opinion.
***
Through Medicaid, Congress has offered the States an opportunity to furnish health care to the poor with
the aid of federal financing….* The ACA enlarges the population of needy people States must cover to
include adults under age 65 with incomes up to 133% of the federal poverty level. The spending power
conferred by the Constitution, the Court has never doubted, permits Congress to define the contours of
programs financed with federal funds. And to expand coverage, Congress could have recalled the existing
*
[JUSTICES BREYER and KAGAN did not join JUSTICE GINSBURG‘s opinion on the Medicaid expansion issue.]
59
legislation, and replaced it with a new law making Medicaid as embracive of the poor as Congress chose.
The question posed by the 2010 Medicaid expansion, then, is essentially this: To cover a notably larger
population, must Congress take the repeal/reenact route, or may it achieve the same result by amending
existing law? The answer should be that Congress may expand by amendment the classes of needy
persons entitled to Medicaid benefits. A ritualistic requirement that Congress repeal and reenact spending
legislation in order to enlarge the population served by a federally funded program would advance no
constitutional principle and would scarcely serve the interests of federalism. To the contrary, such a
requirement would rigidify Congress‘ efforts to empower States by partnering with them in the
implementation of federal programs….
THE CHIEF JUSTICE acknowledges that Congress may ―condition the receipt of [federal] funds on the
States‘ complying with restrictions on the use of those funds,‖ but nevertheless concludes that the 2010
expansion is unduly coercive.… THE CHIEF JUSTICE therefore—for the first time ever—finds an exercise
of Congress‘ spending power unconstitutionally coercive.
Medicaid, as amended by the ACA, however, is not two spending programs; it is a single program with a
constant aim—to enable poor persons to receive basic health care when they need it. Given past
expansions, plus express statutory warning that Congress may change the requirements participating
States must meet, there can be no tenable claim that the ACA fails for lack of notice. Moreover, States
have no entitlement to receive any Medicaid funds; they enjoy only the opportunity to accept funds on
Congress‘ terms. Future Congresses are not bound by their predecessors‘ dispositions; they have authority
to spend federal revenue as they see fit. The Federal Government, therefore, is not, as THE CHIEF JUSTICE
charges, threatening States with the loss of ―existing‖ funds from one spending program in order to
induce them to opt into another program. Congress is simply requiring States to do what States have long
been required to do to receive Medicaid funding: comply with the conditions Congress prescribes for
participation….
This case does not present the concerns that led the Court in Dole even to consider the prospect of
coercion. In Dole, the condition—set 21 as the minimum drinking age—did not tell the States how to use
funds Congress provided for highway construction. Further, in view of the Twenty–First Amendment, it
was an open question whether Congress could directly impose a national minimum drinking age. The
ACA, in contrast, relates solely to the federally funded Medicaid program; if States choose not to comply,
Congress has not threatened to withhold funds earmarked for any other program. Nor does the ACA use
Medicaid funding to induce States to take action Congress itself could not undertake. The Federal
Government undoubtedly could operate its own health-care program for poor persons, just as it operates
Medicare for seniors‘ health care.
That is what makes this such a simple case, and the Court‘s decision so unsettling. Congress, aiming to
assist the needy, has appropriated federal money to subsidize state health-insurance programs that meet
federal standards. The principal standard the ACA sets is that the state program cover adults earning no
more than 133% of the federal poverty line. Enforcing that prescription ensures that federal funds will be
spent on health care for the poor in furtherance of Congress‘ present perception of the general welfare….
Congress has broad authority to construct or adjust spending programs to meet its contemporary
understanding of ―the general Welfare.‖ Courts owe a large measure of respect to Congress‘
characterization of the grant programs it establishes. See Steward Machine. Even if courts were inclined
to second-guess Congress‘ conception of the character of its legislation, how would reviewing judges
divine whether an Act of Congress, purporting to amend a law, is in reality not an amendment, but a new
creation? At what point does an extension become so large that it ―transforms‖ the basic law? …
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THE CHIEF JUSTICE sees no need to ―fix the outermost line where persuasion gives way to coercion.‖
When future Spending Clause challenges arrive, as they likely will in the wake of today‘s decision, how
will litigants and judges assess whether ―a State has a legitimate choice whether to accept the federal
conditions in exchange for federal funds‖? … The coercion inquiry … appears to involve political
judgments that defy judicial calculation. See Baker v. Carr.
At bottom, my colleagues‘ position is that the States‘ reliance on federal funds limits Congress‘ authority
to alter its spending programs. This gets things backwards: Congress, not the States, is tasked with
spending federal money in service of the general welfare. And each successive Congress is empowered to
appropriate funds as it sees fit. When the 110th Congress reached a conclusion about Medicaid funds that
differed from its predecessors‘ view, it abridged no State‘s right to ―existing,‖ or ―pre-existing,‖ funds.
For, in fact, there are no such funds. There is only money States anticipate receiving from future
Congresses….
JUSTICES SCALIA, KENNEDY, THOMAS, AND ALITO, dissenting.
[This] case is in one respect difficult: it presents two questions of first impression. The first of those is
whether failure to engage in economic activity (the purchase of health insurance) is subject to regulation
under the Commerce Clause. Failure to act does result in an effect on commerce, and hence might be said
to come under this Court‘s ―affecting commerce‖ criterion of Commerce Clause jurisprudence. But in
none of its decisions has this Court extended the Clause that far. The second question is whether the
congressional power to tax and spend, U.S. Const., Art. I, § 8, cl. 1, permits the conditioning of a State‘s
continued receipt of all funds under a massive state-administered federal welfare program upon its
acceptance of an expansion to that program. Several of our opinions have suggested that the power to tax
and spend cannot be used to coerce state administration of a federal program, but we have never found a
law enacted under the spending power to be coercive. Those questions are difficult.
The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by
the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of
ours in the 220 years since, is that there are structural limits upon federal power—upon what it can
prescribe with respect to private conduct, and upon what it can impose upon the sovereign States.
Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend,
they cannot be such as will enable the Federal Government to regulate all private conduct and to compel
the States to function as administrators of federal programs.
That clear principle carries the day here. The striking case of Wickard v. Filburn, which held that the
economic activity of growing wheat, even for one‘s own consumption, affected commerce sufficiently
that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause
jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity,
or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make
mere breathing in and out the basis for federal prescription and to extend federal power to virtually all
human activity.
As for the constitutional power to tax and spend for the general welfare: The Court has long since
expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the
general welfare that were within the Federal Government‘s enumerated powers, see United States v.
Butler, 297 U.S. 1 (1936). Thus, we now have sizable federal Departments devoted to subjects not
mentioned among Congress‘ enumerated powers, and only marginally related to commerce: the
Department of Education, the Department of Health and Human Services, the Department of Housing and
Urban Development. The principal practical obstacle that prevents Congress from using the tax-andspend power to assume all the general-welfare responsibilities traditionally exercised by the States is the
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sheer impossibility of managing a Federal Government large enough to administer such a system. That
obstacle can be overcome by granting funds to the States, allowing them to administer the program. That
is fair and constitutional enough when the States freely agree to have their powers employed and their
employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when
the States have no choice.
The Act before us here exceeds federal power both in mandating the purchase of health insurance and in
denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and
operation, and all the Act‘s other provisions would not have been enacted without them. In our view it
must follow that the entire statute is inoperative.
[The joint dissent proceeded at great length to agree with THE CHIEF JUSTICE‘s analysis of the Commerce
and Necessary & Proper Clause issues. They did so, however, without ever formally joining—or even
citing—THE CHIEF JUSTICE‘s opinion. By contrast, they repeatedly responded to JUSTICE GINSBURG‘s
opinion, even calling it ―the dissent.‖]
As far as § 5000A is concerned, we would stop there. Congress has attempted to regulate beyond the
scope of its Commerce Clause authority, and § 5000A is therefore invalid. The Government contends,
however, as expressed in the caption to Part II of its brief, that ―The Minimum Coverage Provision Is
Independently Authorized By Congress‘s Taxing Power.‖ The phrase ―independently authorized‖
suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for
constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually
exclusive. The provision challenged under the Constitution is either a penalty or else a tax…. Thus, what
the Government‘s caption should have read was ―Alternatively, The Minimum Coverage Provision Is Not
A Mandate-With-Penalty But A Tax.‖ It is important to bear this in mind in evaluating the tax argument
of the Government and of those who support it: The issue is not whether Congress had the power to frame
the minimum-coverage provision as a tax, but whether it did so.
In answering that question we must, if ―fairly possible,‖ construe the provision to be a tax rather than a
mandate-with-penalty, since that would render it constitutional rather than unconstitutional. But we
cannot rewrite the statute to be what it is not. In this case, there is simply no way, without doing violence
to the fair meaning of the words used, to escape what Congress enacted: a mandate that individuals
maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: a tax is an enforced contribution to provide
for the support of government; a penalty is an exaction imposed by statute as punishment for an unlawful
act. In a few cases, this Court has held that a ―tax‖ imposed upon private conduct was so onerous as to be
in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was
so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is
an exercise of Congress‘ taxing power—even when the statute calls it a tax, much less when (as here) the
statute repeatedly calls it a penalty. When an act ―adopts the criteria of wrongdoing‖ and then imposes a
monetary penalty as the ―principal consequence on those who transgress its standard,‖ it creates a
regulatory penalty, not a tax. Child Labor Tax Case.
So the question is, quite simply, whether the exaction here is imposed for violation of the law. It
unquestionably is. The minimum-coverage provision is found in 26 U.S.C. § 5000A, entitled
―Requirement to maintain minimum essential coverage.‖ (Emphasis added.) It commands that every
―applicable individual shall ... ensure that the individual ... is covered under minimum essential
coverage.‖ Id. (emphasis added). And the immediately following provision states that, ―[i]f ... an
applicable individual ... fails to meet the requirement of subsection (a) ... there is hereby imposed ... a
penalty.‖ § 5000A(b) (emphasis added)…. Eighteen times in § 5000A itself and elsewhere throughout
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the Act, Congress called the exaction in §5000A(b) a ―penalty.‖
[To] say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.
Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765,
and in part for that reason, the Constitution requires tax increases to originate in the House of
Representatives. See Art. I, § 7, cl. 1. That is to say, they must originate in the legislative body most
accountable to the people, where legislators must weigh the need for the tax against the terrible price they
might pay at their next election, which is never more than two years off…. We have no doubt that
Congress knew precisely what it was doing when it rejected an earlier version of this legislation that
imposed a tax instead of a requirement-with-penalty. Imposing a tax through judicial legislation inverts
the constitutional scheme, and places the power to tax in the branch of government least accountable to
the citizenry….
We now consider respondents‘ second challenge to the constitutionality of the ACA, namely, that the
Act‘s dramatic expansion of the Medicaid program exceeds Congress‘ power to attach conditions to
federal grants to the States…. When federal legislation gives the States a real choice whether to accept or
decline a federal aid package, the federal-state relationship is in the nature of a contractual relationship.
And just as a contract is voidable if coerced, the legitimacy of Congress‘ power to legislate under the
spending power rests on whether the State voluntarily and knowingly accepts the terms of the contract. If
a federal spending program coerces participation the States have not exercised their choice—let alone
made an informed choice….
Therefore, if States really have no choice other than to accept the package, the offer is coercive, and the
conditions cannot be sustained under the spending power. And as our decision in South Dakota v. Dole
makes clear, theoretical voluntariness is not enough…. The Federal Government‘s argument in this case
at best pays lip service to the anticoercion principle. The Federal Government suggests that it is sufficient
if States are ―free, as a matter of law, to turn down‖ federal funds (emphasis added). According to the
Federal Government, neither the amount of the offered federal funds nor the amount of the federal taxes
extracted from the taxpayers of a State to pay for the program in question is relevant in determining
whether there is impermissible coercion.
This argument ignores reality. When a heavy federal tax is levied to support a federal program that offers
large grants to the States, States may, as a practical matter, be unable to refuse to participate in the federal
program and to substitute a state alternative. Even if a State believes that the federal program is
ineffective and inefficient, withdrawal would likely force the State to impose a huge tax increase on its
residents, and this new state tax would come on top of the federal taxes already paid by residents to
support subsidies to participating States….
Whether federal spending legislation crosses the line from enticement to coercion is often difficult to
determine, and courts should not conclude that legislation is unconstitutional on this ground unless the
coercive nature of an offer is unmistakably clear. In this case, however, there can be no doubt. In
structuring the ACA, Congress unambiguously signaled its belief that every State would have no real
choice but to go along with the Medicaid Expansion. If the anticoercion rule does not apply in this case,
then there is no such rule….
Medicaid has long been the largest federal program of grants to the States. In 2010, the Federal
Government directed more than $552 billion in federal funds to the States. Of this, more than $233 billion
went to pre-expansion Medicaid. This amount equals nearly 22% of all state expenditures combined. The
States devote a larger percentage of their budgets to Medicaid than to any other item. Federal funds
account for anywhere from 50% to 83% of each State‘s total Medicaid expenditures; most States receive
more than $1 billion in federal Medicaid funding; and a quarter receive more than $5 billion. These
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federal dollars total nearly two thirds—64.6%—of all Medicaid expenditures nationwide.
[The] sheer size of this federal spending program in relation to state expenditures means that a State
would be very hard pressed to compensate for the loss of federal funds by cutting other spending or
raising additional revenue. … The States are far less reliant on federal funding for any other program.
After Medicaid, the next biggest federal funding item is aid to support elementary and secondary
education, which amounts to 12.8% of total federal outlays to the States, and equals only 6.6% of all state
expenditures combined. For these reasons, the offer that the ACA makes to the States—go along with a
dramatic expansion of Medicaid or potentially lose all federal Medicaid funding—is quite unlike anything
that we have seen in a prior spending-power case….
Congress never dreamed that any State would refuse to go along with the expansion of Medicaid.
Congress well understood that refusal was not a practical option. The Federal Government does not
dispute the inference that Congress anticipated 100% state participation, but it argues that this assumption
was based on the fact that ACA‘s offer was an ―exceedingly generous‖ gift. As the Federal Government
sees things, Congress is like the generous benefactor who offers $1 million with few strings attached to
50 randomly selected individuals. Just as this benefactor might assume that all of these 50 individuals
would snap up his offer, so Congress assumed that every State would gratefully accept the federal funds
(and conditions) to go with the expansion of Medicaid.
This characterization of the ACA‘s offer raises obvious questions. If that offer is ―exceedingly
generous,‖ as the Federal Government maintains, why have more than half the States brought this lawsuit,
contending that the offer is coercive? And why did Congress find it necessary to threaten that any State
refusing to accept this ―exceedingly generous‖ gift would risk losing all Medicaid funds? Congress could
have made just the new funding provided under the ACA contingent on acceptance of the terms of the
Medicaid Expansion….
Congress‘ decision to do otherwise here reflects its understanding that the ACA offer is not an
―exceedingly generous‖ gift that no State in its right mind would decline. Instead, acceptance of the offer
will impose very substantial costs on participating States. It is true that the Federal Government will bear
most of the initial costs associated with the Medicaid Expansion, first paying 100% of the costs of
covering newly eligible individuals between 2014 and 2016. But that is just part of the picture.
Participating States will be forced to shoulder substantial costs as well, because after 2019 the Federal
Government will cover only 90% of the costs associated with the Expansion, with state spending
projected to increase by at least $20 billion by 2020 as a consequence. After 2019, state spending is
expected to increase at a faster rate; the CBO estimates new state spending at $60 billion through 2021.
And these costs may increase in the future because of the very real possibility that the Federal
Government will change funding terms and reduce the percentage of funds it will cover. This would leave
the States to bear an increasingly large percentage of the bill. Finally, after 2015, the States will have to
pick up the tab for 50% of all administrative costs associated with implementing the new program, costs
that could approach $12 billion between fiscal years 2014 and 2020.
In sum, it is perfectly clear from the goal and structure of the ACA that the offer of the Medicaid
Expansion was one that Congress understood no State could refuse. The Medicaid Expansion therefore
exceeds Congress‘ spending power and cannot be implemented.
Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is
unconstitutional. See Part IV–A (opinion of ROBERTS, C.J., joined by BREYER and KAGAN, JJ.). Because
the Medicaid Expansion is unconstitutional, the question of remedy arises. The most natural remedy
would be to invalidate the Medicaid Expansion. However, the Government proposes—in two cursory
sentences at the very end of its brief—preserving the Expansion. Under its proposal, States would receive
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the additional Medicaid funds if they expand eligibility, but States would keep their pre-existing Medicaid
funds if they do not expand eligibility. We cannot accept the Government‘s suggestion.
The reality that States were given no real choice but to expand Medicaid was not an accident. Congress
assumed States would have no choice, and the ACA depends on States‘ having no choice, because its
Mandate requires low-income individuals to obtain insurance many of them can afford only through the
Medicaid Expansion. Furthermore, a State‘s withdrawal might subject everyone in the State to much
higher insurance premiums. That is because the Medicaid Expansion will no longer offset the cost to the
insurance industry imposed by the ACA‘s insurance regulations and taxes, a point that is explained in
more detail in the severability section below. To make the Medicaid Expansion optional despite the
ACA‘s structure and design would be to make a new law, not to enforce an old one. This is no part of our
duty.
[The joint dissenters went on to conclude that, because the individual mandate and the Medicaid
expansion were unconstitutional, the entire ACA—from its major provisions concerning guaranteed issue
and community rating to its minor provisions concerning nutritional displays at chain restaurants and
taxes on tanning booths—ought to be struck down. The final portion of their dissent is included below.]
The Court today decides to save a statute Congress did not write. It rules that what the statute declares to
be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally
coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the
incremental funds that the Act makes available.
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a
vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that
Congress did not enact and the public does not expect. It makes enactment of sensible health-care
regulation more difficult, since Congress cannot start afresh but must take as its point of departure a
jumble of now senseless provisions, provisions that certain interests favored under the Court‘s new design
will struggle to retain. And it leaves the public and the States to expend vast sums of money on
requirements that may or may not survive the necessary congressional revision….
The values that should have determined our course today are caution, minimalism, and the understanding
that the Federal Government is one of limited powers. But the Court‘s ruling undermines those values at
every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new
constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital
relevance to our own times. The constitutional protections that this case involves are protections of
structure. Structural protections—notably, the restraints imposed by federalism and separation of
powers—are less romantic and have less obvious a connection to personal freedom than the provisions of
the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by
our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the
Framers considered structural protections of freedom the most important ones, for which reason they
alone were embodied in the original Constitution and not left to later amendment. The fragmentation of
power produced by the structure of our Government is central to liberty, and when we destroy it, we place
liberty at peril. Today‘s decision should have vindicated, should have taught, this truth; instead, our
judgment today has disregarded it.
For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.
[The separate dissenting statement of JUSTICE THOMAS is omitted.]
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Note on the Tenth Amendment
As you know by now, the first question to ask yourself when you confront the issue of whether
the federal government has the power to do a particular thing is ―What in the Constitution, if
anything, confers that power?‖ So when you read about the National League of Cities case on
page 351 of the casebook, make sure ask yourself whether Congress had the power to pass the
minimum wage law at issue. (The same law was at issue in the Garcia case excerpted at pp.
352-53, so your answer for National League of Cities should hold for Garcia as well.)
As the casebook tells you, in National League of Cities the Court held that Congress had the
power to pass a minimum wage law, but that the application of that law to state employees was
unconstitutional. Unfortunately, the casebook does not tell you which constitutional provision
was the basis for the Court‘s decision. So I‘m going to tell you. According to then-Justice
Rehnquist‘s majority opinion in National League of Cities, the relevant constitutional rule is to
be found in the Tenth Amendment.
Here is the text of the Tenth Amendment: ―The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.‖ Does it support the holding in National League of Cities? Here‘s a quote from Justice
Rehnquist‘s opinion: ―The [Tenth] Amendment expressly declares the constitutional policy that
Congress may not exercise power in a fashion that impairs the States‘ integrity or their ability to
function effectively in a federal system.‖ Do you agree?
When you get to the ―anticommandeering‖ cases (New York v. United States, p. 354; and Printz
v. United States, p. 356), ask yourself again whether the Tenth Amendment supports the holding
in those cases.
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BARRON
v.
MAYOR AND CITY COUNCIL OF BALTIMORE
32 U.S. (7 Pet.) 243 (1833)
[Barron brought an action against the City of Baltimore. He presented evidence that street
construction had diverted the flow of streams so that they deposited silt in front of his wharf,
making the water so shallow that vessels could no longer reach the wharf, thus diminishing its
value. He sued the city under the Takings Clause of the United States Constitution‘s Fifth
Amendment.]
CHIEF JUSTICE MARSHALL delivered the opinion of the Court.
… The question thus presented is, we think, of great importance, but not of much difficulty. The
constitution was ordained and established by the people of the United States for themselves, for
their own government, and not for the government of the individual states. Each state established
a constitution for itself, and in that constitution, provided such limitations and restrictions on the
powers of its particular government, as its judgment dictated. The people of the United States
framed such a government for the United States as they supposed best adapted to their situation
and best calculated to promote their interests. The powers they conferred on this government
were to be exercised by itself; and the limitations on power, if expressed in general terms, are
naturally, and, we think, necessarily, applicable to the government created by the instrument.
They are limitations of power granted in the instrument itself; not of distinct governments,
framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power
of the general government, not as applicable to the states. In their several constitutions, they have
imposed such restrictions on their respective governments, as their own wisdom suggested; such
as they deemed most proper for themselves. It is a subject on which they judge exclusively, and
with which others interfere no further than they are supposed to have a common interest.
The counsel for the plaintiff … relies on the inhibitions contained in the tenth section of the first
article. We think, that section affords a strong, if not a conclusive, argument in support of the
opinion already indicated by the court. …
The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to
be imposed on the powers of the general government, the tenth proceeds to enumerate those
which were to operate on the state legislatures. These restrictions are brought together in the
same section, and are by express words applied to the states. ‗No state shall enter into any
treaty,‘ etc. Perceiving, that in a constitution framed by the people of the United States, for the
government of all, no limitation of the action of government on the people would apply to the
state government, unless expressed in terms, the restrictions contained in the tenth section are in
direct words so applied to the states.
It is worthy of remark, too, that these inhibitions generally restrain state legislation on subjects
67
intrusted to the general government, or in which the people of all the states feel an interest.…
Had the people of the several states, or any of them, required changes in their constitutions; had
they required additional safe-guards to liberty from the apprehended encroachments of their
particular governments; the remedy was in their own hands, and could have been applied by
themselves. A convention could have been assembled by the discontented state, and the required
improvements could have been made by itself. The unwieldy and cumbrous machinery of
procuring a recommendation from two-thirds of congress, and the assent of three-fourths of their
sister states, could never have occurred to any human being, as a mode of doing that which might
be effected by the state itself. Had the framers of these amendments intended them to be
limitations on the powers of the state governments, they would have imitated the framers of the
original constitution, and have expressed that intention. Had congress engaged in the
extraordinary occupation of improving the constitutions of the several states, by affording the
people additional protection from the exercise of power by their own governments, in matters
which concerned themselves alone, they would have declared this purpose in plain and
intelligible language.
But it is universally understood, it is a part of the history of the day, that the great revolution
which established the constitution of the United States, was not effected without immense
opposition. Serious fears were extensively entertained, that those powers which the patriot
statesmen, who then watched over the interests of our country, deemed essential to union, and to
the attainment of those unvaluable objects for which union was sought, might be exercised in a
manner dangerous to liberty. In almost every convention by which the constitution was adopted,
amendments to guard against the abuse of power were recommended. These amendments
demanded security against the apprehended encroachments of the general government not
against those of the local governments. In compliance with a sentiment thus generally expressed,
to quiet fears thus extensively entertained, amendments were proposed by the required majority
in congress, and adopted by the states. These amendments contain no expression indicating an
intention to apply them to the state governments. This court cannot so apply them.
We are of opinion, that the provision in the fifth amendment to the constitution, declaring that
private property shall not be taken for public use, without just compensation, is intended solely
as a limitation on the exercise of power by the government of the United States, and is not
applicable to the legislation of the states. We are, therefore, of opinion, that there is no
repugnancy between the several acts of the general assembly of Maryland, given in evidence by
the defendants at the trial of this cause, in the court of that state, and the constitution of the
United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.
68
Strict scrutiny for racial classifications: possible rationales
Since Korematsu, the Supreme Court has consistently held that laws expressly classifying people on the
basis of race or ethnicity must be subjected to ―the most rigid scrutiny.‖ More recently, the Court has
made clear that such laws will be invalidated unless they are narrowly tailored to further a compelling
state interest. This has come to be known as the strict scrutiny test.
As we shall soon see, ordinary legislative classifications are subject to the much more lenient rational
basis test. The question therefore arises: Why strict scrutiny for racial classifications? The answer cannot
be found in the text of the Equal Protection Clause, which does not mention race, let alone levels of
scrutiny.
As you read the cases in this section of the course, ask yourself which of the following possible rationales
for strict scrutiny of racial classifications are most (or least) persuasive. Is any of them fully persuasive?
Do you disagree with any of their premises? Do any of them justify applying strict scrutiny to laws that
disadvantage people other than racial or ethnic minorities? (E.g., racial majorities? Women? Gays and
lesbians? Non-citizens? Children born out of wedlock? Opticians?)
1.
The originalist rationale. Racial classifications are especially suspect because the framers of the
Fourteenth Amendment intended to outlaw such classifications.
2.
The historical rationale. Because of our nation‘s long history of slavery and racism, all racial
classifications must be reviewed with special vigilance.
3.
The anti-subordination rationale. Laws that classify people by race tend to (or are designed to)
perpetuate the subordination of traditionally disadvantaged groups and must therefore be closely
scrutinized.
4.
The political process rationale. Because the political process long excluded racial minorities and
is still pervaded by prejudice, racial classifications should be aggressively reviewed by courts,
which are largely insulated from politics.
5.
The stereotypes rationale. Because laws that classify according to race are especially likely to be
based on invidious generalizations that don‘t accurately reflect the ability of minorities to
contribute to society, strict scrutiny is proper.
6.
The immutable characteristics rationale. Because race is a trait that most people cannot change,
racial classifications are especially unfair and stigmatizing, and should be subjected to strict
scrutiny.
7.
The anti-balkanization rationale. Laws that classify individuals by race exacerbate racial
divisions in society by treating individuals solely as members of racial groups, and should
therefore be carefully scrutinized by courts.
8.
The moral rationale. Because race is always morally irrelevant to the allocation of social
benefits and burdens, laws that classify people by race are inherently wrong.
69
The famous ―Footnote Four‖
The Supreme Court made its earliest systematic attempt to identify the circumstances that might
justify heightened judicial scrutiny in Justice Stone‘s opinion for the Court in United States v.
Carolene Products (1938). You read Carolene Products earlier in the course (it‘s on page 770
of the casebook). It was, as you may recall, a rational basis case, so the Court‘s discussion of
heightened scrutiny was dicta. Even worse: the discussion was in a footnote!
Still, Footnote Four from Carolene Products is the most famous footnote in the history of
American constitutional law. Unfortunately, it is somewhat obliquely written. Here it is:
There may be narrower scope for operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments, which are deemed
equally specific when held to be embraced within the Fourteenth. [Citations
omitted.]
It is unnecessary to consider now whether legislation which restricts those
political processes which can ordinarily be expected to bring about repeal of
undesirable legislation, is to be subjected to more exacting judicial scrutiny under
the general prohibitions of the Fourteenth Amendment than are most other types
of legislation. [The Court then cited cases involving restrictions on the right to
vote, on the dissemination of information, on interferences with political
association, and on peaceable assembly.]
Nor need we enquire whether similar considerations enter into the review of
statutes directed at particular religious or national or racial minorities; whether
prejudice against discrete and insular minorities may be a special condition, which
tends seriously to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry. Compare McCulloch v. Maryland.
Take another look at the possible rationales for strict scrutiny described on the previous page of
this handout. Which of those rationales is the Court relying on in Footnote Four?
70
YICK WO
v.
HOPKINS
118 U.S. 356 (1886)
[Yick Wo was convicted of violating a San Francisco city ordinance prohibiting operation of a
laundry not located in a brick or stone building without the consent of the board of supervisors.
He alleged that he and 200 other persons of Chinese ancestry had petitioned the board for
permission to continue their laundries in wooden buildings, but that all such petitions were
denied, and that all but one of the petitions filed by non-Chinese were granted.]
JUSTICE MATTHEWS delivered the opinion of the Court.
… The rights of the petitioners, as affected by the proceedings of which they complain, are not
less because they are aliens and subjects of the emperor of China. … The fourteenth amendment
to the constitution is not confined to the protection of citizens. It says: ‗Nor shall any state
deprive any person of life, liberty, or property without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.‘ These provisions are universal in
their application, to all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of
the protection of equal laws. …
It is contended on the part of the petitioners that the ordinances for violations of which they are
severally sentenced to imprisonment are void on their face, as being within the prohibitions of
the fourteenth amendment, and, in the alternative, if not so, that they are void by reason of their
administration, operating unequally, so as to punish in the present petitioners what is permitted to
others as lawful, without any distinction of circumstances,—an unjust and illegal discrimination,
it is claimed, which, though not made expressly by the ordinances, is made possible by them. …
In the present cases, we are not obliged to reason from the probable to the actual, and pass upon
the validity of the ordinances complained of, as tried merely by the opportunities which their
terms afford, of unequal and unjust discrimination in their administration; for the cases present
the ordinances in actual operation, and the facts shown establish an administration directed so
exclusively against a particular class of persons as to warrant and require the conclusion that,
whatever may have been the intent of the ordinances as adopted, they are applied by the public
authorities charged with their administration, and thus representing the state itself, with a mind
so unequal and oppressive as to amount to a practical denial by the state of that equal protection
of the laws which is secured to the petitioners, as to all other persons, by the broad and benign
provisions of the fourteenth amendment to the constitution of the United States. Though the law
itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by
public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their rights, the denial of
equal justice is still within the prohibition of the constitution. …
The present cases, as shown by the facts disclosed in the record, are within this class. It appears
71
that both petitioners have complied with every requisite deemed by the law, or by the public
officers charged with its administration, necessary for the protection of neighboring property
from fire, or as a precaution against injury to the public health. No reason whatever, except the
will of the supervisors, is assigned why they should not be permitted to carry on, in the
accustomed manner, their harmless and useful occupation, on which they depend for a
livelihood; and while this consent of the supervisors is withheld from them, and from 200 others
who have also petitioned, all of whom happen to be Chinese subjects, 80 others, not Chinese
subjects, are permitted to carry on the same business under similar conditions. The fact of this
discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that
no reason for it exists except hostility to the race and nationality to which the petitioners belong,
and which, in the eye of the law, is not justified. The discrimination is therefore illegal, and the
public administration which enforces it is a denial of the equal protection of the laws, and a
violation of the fourteenth amendment of the constitution. The imprisonment of the petitioners is
therefore illegal, and they must be discharged. …
72
GOMILLION
v.
LIGHTFOOT
364 U.S. 339 (1960)
JUSTICE FRANKFURTER delivered the opinion of the Court.
This litigation challenges the validity, under the United States Constitution, of Local Act No.
140, passed by the Legislature of Alabama in 1957, redefining the boundaries of the City of
Tuskegee. Petitioners, Negro citizens of Alabama who were, at the time of this redistricting
measure, residents of the City of Tuskegee, brought an action in the United States District Court
for the Middle District of Alabama for a declaratory judgment that Act 140 is unconstitutional,
and for an injunction to restrain the Mayor and officers of Tuskegee and the officials of Macon
County, Alabama, from enforcing the Act against them and other Negroes similarly situated.
Petitioners‘ claim is that enforcement of the statute, which alters the shape of Tuskegee from a
square to an uncouth twenty-eight-sided figure, will constitute a discrimination against them in
violation of the Equal Protection Clause[] of the Fourteenth Amendment and will deny them the
right to vote in defiance of the Fifteenth Amendment. …
Prior to Act 140 the City of Tuskegee was square in shape; the Act transformed it into a
strangely irregular twenty-eight-sided figure…. The essential inevitable effect of this redefinition
of Tuskegee‘s boundaries is to remove from the city all save only four or five of its 400 Negro
voters while not removing a single white voter or resident. …
If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be
irresistible, tantamount for all practical purposes to a mathematical demonstration, that the
legislation is solely concerned with segregating white and colored voters by fencing Negro
citizens out of town so as to deprive them of their pre-existing municipal vote. …
The complaint amply alleges a claim of racial discrimination. Against this claim the respondents
have never suggested, either in their brief or in oral argument, any countervailing municipal
function which Act 140 is designed to serve. …
According to the allegations here made, the Alabama Legislature has not merely redrawn the
Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say
that it has deprived the petitioners of the municipal franchise and consequent rights and to that
end it has incidentally changed the city‘s boundaries. While in form this is merely an act
redefining metes and bounds, if the allegations are established, the inescapable human effect of
this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of
their theretofore enjoyed voting rights. … [The concurring opinions of Justice Douglas and
Justice Whittaker are omitted.]
73
PALMER
v.
THOMPSON
403 U.S. 217 (1971)
JUSTICE BLACK delivered the opinion of the Court.
In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools,
golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming
pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United
States District Court seeking a declaratory judgment that this state-enforced segregation of the races was a
violation of the … Fourteenth Amendment[], and asking an injunction to forbid such practices. After
hearings the District Court entered a judgment declaring that enforced segregation denied equal protection
of the laws but it declined to issue an injunction. The Court of Appeals affirmed, and we denied
certiorari. The city proceeded to desegregate its public parks, auditoriums, golf courses, and the city zoo.
However, the city council decided not to try to operate the public swimming pools on a desegregated
basis. Acting in its legislative capacity, the council surrendered its lease on one pool and closed four
which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to
reopen the pools and operate them on a desegregated basis. The District Court found that the closing was
justified to preserve peace and order and because the pools could not be operated economically on an
integrated basis. It held the city‘s action did not deny black citizens equal protection of the laws. The
Court of Appeals sitting en banc affirmed, six out of 13 judges dissenting. That court rejected the
contention that since the pools had been closed either in whole or in part to avoid desegregation the city
council‘s action was a denial of equal protection of the laws. We granted certiorari to decide that
question. We affirm.
Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to ―deny
to any person within its jurisdiction the equal protection of the laws.‖ There can be no doubt that a major
purpose of this amendment was to safeguard Negroes against discriminatory state laws—state laws that
fail to give Negroes protection equal to that afforded white people. History shows that the achievement of
equality for Negroes was the urgent purpose not only for passage of the Fourteenth Amendment but for
the Thirteenth and Fifteenth Amendments as well. See, e.g., Slaughter-House. Thus the Equal Protection
Clause was principally designed to protect Negroes against discriminatory action by the States. Here there
has unquestionably been ―state action‖ because the official local government legislature, the city council,
has closed the public swimming pools of Jackson. The question, however, is whether this closing of the
pools is state action that denies ―the equal protection of the laws‖ to Negroes. It should be noted first that
neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a
State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where
whites are permitted to use public facilities while blacks are denied access. It is not a case where a city is
maintaining different sets of facilities for blacks and whites and forcing the races to remain separate in
recreational or educational activities. See, e. g., Brown v. Board of Education. …
[Petitioners argue] that respondents‘ action violates the Equal Protection Clause because the decision to
close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has
held that a legislative act may violate equal protection solely because of the motivations of the men who
voted for it. …
First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations,
that lie behind a legislative enactment. Here, for example, petitioners have argued that the Jackson pools
74
were closed because of ideological opposition to racial integration in swimming pools. Some evidence in
the record appears to support this argument. On the other hand the courts below found that the pools were
closed because the city council felt they could not be operated safely and economically on an integrated
basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for
any court to determine the ―sole‖ or ―dominant‖ motivation behind the choices of a group of legislators.
Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad
motives of its supporters. If the law is struck down for this reason, rather than because of its facial
content or effect, it would presumably be valid as soon as the legislature or relevant governing body
repassed it for different reasons.
It is true there is language in some of our cases interpreting the Fourteenth and Fifteenth Amendments
which may suggest that the motive or purpose behind a law is relevant to its constitutionality. E.g.,
Gomillion. But the focus in those cases was on the actual effect of the enactments, not upon the
motivation which led the States to behave as they did. …[I]n Gomillion the Alabama Legislature‘s
gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections.
Here the record indicates only that Jackson once ran segregated public swimming pools and that no public
pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is
now covertly aiding the maintenance and operation of pools which are private in name only. It shows no
state action affecting blacks differently from whites. …
It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to
build and operate swimming pools for the public. Probably few persons, prior to this case, would have
imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools
which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any
other city be able to establish in court that public, tax-supported swimming pools are being denied to one
group because of color and supplied to another, they will be entitled to relief. But that is not the case here.
JUSTICE WHITE, with whom Justices Brennan and Marshall join, dissenting:
To me it is beyond cavil that … the city is adhering to an unconstitutional policy and is implementing it
by abandoning the [swimming] facilities. It will not do in such circumstances to say that whites and
Negroes are being treated alike because both are denied use of public services. The fact is that closing the
pools is an expression of official policy that Negroes are unfit to associate with whites. Closing pools to
prevent interracial swimming is little different from laws or customs forbidding Negroes and whites from
eating together or from cohabiting or intermarrying. …
I am quite unpersuaded by the majority‘s assertion that it is impermissible to impeach the otherwise valid
act of closing municipal swimming pools by resort to evidence of invidious purpose or motive. Congress
has long provided civil and criminal remedies for a variety of official and private conduct. In various
situations these statutes and our interpretations of them provide that such conduct falls within the federal
proscription only upon proof of forbidden racial motive or animus [citing federal antidiscrimination laws].
… Official conduct is no more immune to characterization based on its motivation than is private
conduct, and we have so held many times. …
On May 24, 1962, nine days after the District Court‘s [desegregation] decision, the Jackson Daily News
quoted Mayor Thompson as saying, ―‗if these agitators keep up their pressure, we would have five
colored swimming pools because we are not going to have any intermingling.‘ … He said the City now
has legislative authority to sell the pools or close them down if they can‘t be sold.‖ … [A year later,] the
same newspaper carried a front page article stating that ―Thompson said neither agitators nor President
Kennedy will change the determination of Jackson to retain segregation.‖ …
75
The officials‘ sworn affidavits, accepted by the courts below, stated that loss of revenue and danger to the
citizens would obviously result from operating the pools on an integrated basis. Desegregation, and
desegregation alone, was the catalyst that would produce these undesirable consequences. Implicit in this
official judgment were assumptions that the citizens of Jackson were of such a mind that they would no
longer pay the 10- or 20-cent fee imposed by the city if their swimming and wading had to be done with
their neighbors of another race, that some citizens would direct violence against their neighbors for using
pools previously closed to them, and that the anticipated violence would not be controllable by the
authorities. Stated more simply, although the city officials knew what the Constitution required …, their
judgment was that compliance with that mandate, at least with respect to swimming pools, would be
intolerable to Jackson‘s citizens. …
Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the
hypothetical effects of private racial prejudice that they assume to be both widely and deeply held. …
[I]t is untenable to suggest that the closing of the swimming pools—a pronouncement that Negroes are
somehow unfit to swim with whites—operates equally on Negroes and whites. Whites feel nothing but
disappointment and perhaps anger at the loss of the facilities. Negroes feel that and more. They are
stigmatized by official implementation of a policy that the Fourteenth Amendment condemns as illegal.
And the closed pools stand as mute reminders to the community of the official view of Negro inferiority.
[Concurring opinions by Chief Justice Burger and Justice Blackmun and dissenting opinions by Justices
Douglas and Marshall are omitted.]
76
PALMORE
v.
SIDOTI
466 U.S. 429 (1984)
CHIEF JUSTICE BURGER delivered the opinion of the Court.
[W]hen petitioner Linda Sidoti Palmore and respondent Anthony J. Sidoti, both Caucasians,
were divorced in May, 1980, in Florida, the mother was awarded custody of their 3-year-old
daughter. In September, 1981, the father sought custody of the child by filing a petition to
modify the prior judgment because of changed conditions. The change was that the child‘s
mother was then cohabiting with a Negro, Clarence Palmore, Jr., whom she married two months
later.
[A]fter hearing testimony from both parties and considering a court counselor‘s investigative
report, the [state] court made a finding that ―there is no issue as to either party‘s devotion to the
child, adequacy of housing facilities, or respectability of the new spouse of either parent.‖ [The
court] noted the counselor‘s recommendation for a change in custody because ―[t]he wife
[petitioner] has chosen for herself, and for her child, a lifestyle unacceptable to the father and to
society. . . . The child . . . is, or at school age will be, subject to environmental pressures not of
choice.‖ (Emphasis added).
The court then concluded that the best interests of the child would be served by awarding
custody to the father. The court‘s rationale is contained in the following:
―The father‘s evident resentment of the mother‘s choice of a black partner is not
sufficient to wrest custody from the mother. It is of some significance, however,
that the mother did see fit to bring a man into her home and carry on a sexual
relationship with him without being married to him. Such action tended to place
gratification of her own desires ahead of her concern for the child‘s future
welfare. This Court feels that despite the strides that have been made in bettering
relations between the races in this country, it is inevitable that Melanie will, if
allowed to remain in her present situation and attains school age, and thus more
vulnerable to peer pressures, suffer from the social stigmatization that is sure to
come.‖ (Emphasis added).
[T]he judgment of a state court determining or reviewing a child custody decision is not
ordinarily a likely candidate for review by this Court. However, the court‘s opinion, after stating
that the ―father‘s evident resentment of the mother‘s choice of a black partner is not sufficient‖ to
deprive her of custody, then turns to what it regarded as the damaging impact on the child from
remaining in a racially mixed household. This raises important federal concerns arising from the
Constitution‘s commitment to eradicating discrimination based on race.
The Florida court did not focus directly on the parental qualifications of the natural mother or her
present husband, or indeed on the father‘s qualifications to have custody of the child. The court
77
found that ―there is no issue as to either party‘s devotion to the child, adequacy of housing
facilities, or respectability of the new spouse of either parent.‖ This, taken with the absence of
any negative finding as to the quality of the care provided by the mother, constitutes a rejection
of any claim of petitioner‘s unfitness to continue the custody of her child. The court correctly
stated that the child‘s welfare was the controlling factor. But that court was entirely candid, and
made no effort to place its holding on any ground other than race. Taking the court‘s findings
and rationale at face value, it is clear that the outcome would have been different had petitioner
married a Caucasian male of similar respectability.
A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed
discrimination based on race. See Strauder v. West Virginia. Classifying persons according to
their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not
the person, dictates the category. Such classifications are subject to the most exacting scrutiny;
to pass constitutional muster, they must be justified by a compelling governmental interest and
must be ―necessary . . . to the accomplishment‖ of their legitimate purpose. See Loving v.
Virginia.
The State, of course, has a duty of the highest order to protect the interests of minor children,
particularly those of tender years. In common with most states, Florida law mandates that
custody determinations be made in the best interests of the children involved. The goal of
granting custody based on the best interests of the child is indisputably a substantial
governmental interest for purposes of the Equal Protection Clause.
It would ignore reality to suggest that racial and ethnic prejudices do not exist, or that all
manifestations of those prejudices have been eliminated. There is a risk that a child living with a
step-parent of a different race may be subject to a variety of pressures and stresses not present if
the child were living with parents of the same racial or ethnic origin.
The question, however, is whether the reality of private biases and the possible injury they might
inflict are permissible considerations for removal of an infant child from the custody of its
natural mother. We have little difficulty concluding that they are not. The Constitution cannot
control such prejudices, but neither can it tolerate them. Private biases may be outside the reach
of the law, but the law cannot, directly or indirectly, give them effect. ―Public officials sworn to
uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects
of private racial prejudice that they assume to be both widely and deeply held.‖ Palmer v.
Thompson (1971) (WHITE, J., dissenting).
[T]he effects of racial prejudice, however real, cannot justify a racial classification removing an
infant child from the custody of its natural mother found to be an appropriate person to have such
custody.
78
Sample questions from the qualifying test for police officers in Washington v. Davis:
3. Laws restricting hunting to certain regions and to a specific time of the year were passed chiefly to
A) prevent people from endangering their lives by hunting
B) keep our forests more beautiful
C) raise funds from the sale of hunting licenses
D) prevent complete destruction of certain kinds of animals
E) preserve certain game for eating purposes
28. The saying ―Straight trees are the first to be felled‖ means most nearly
A) Honest effort is always rewarded.
B) The best are the first chosen.
C) Ill luck passes no one by.
D) The highest in rank have farthest to fall.
E) The stubborn are soon broken.
36. To RETRENCH means most nearly to
A) impede
B) replace
C) counteract
D) attack
E) curtail
52. The saying ―Habits are at first cobwebs, at last cables‖ means most nearly
A) Good work habits make any task easier.
B) Habits grow stronger with time.
C) It is sometimes difficult to acquire good habits.
D) Bad habits are the hardest to break.
E) Good habits should be acquired early in life.
63. The saying ―They wrangle about an egg and let the hens fly away‖ means most nearly
A) They dispute at every opportunity.
B) Attention to details is important.
C) Arguing is seldom worthwhile.
D) They have a poor sense of values.
E) A grasping person had few friends.
73. PROMONTORY means most nearly
A) marsh
B) monument
C) headland
D) boundary
E) plateau
79
FISHER
v.
UNIVERSITY OF TEXAS
133 S. Ct. 2411 (2013)
JUSTICE KENNEDY delivered the opinion of the Court.
… The Texas State Legislature … enacted a measure known as the Top Ten Percent Law,
[which] grants automatic admission to any public state college, including the University, to all
students in the top 10% of their class at high schools in Texas that comply with certain
standards….
Following this Court‘s decisions in Grutter v. Bollinger and Gratz v. Bollinger, the University
adopted … the program here at issue. … The University asks students to classify themselves
from among five predefined racial categories on the application. Race is not assigned an explicit
numerical value, but it is undisputed that race is a meaningful factor.
Once applications have been scored, they are plotted on a grid with the Academic Index on the xaxis and the Personal Achievement Index on the y-axis. On that grid students are assigned to socalled cells based on their individual scores. All students in the cells falling above a certain line
are admitted. All students below the line are not. Each college—such as Liberal Arts or
Engineering—admits students separately. So a student is considered initially for her first-choice
college, then for her second choice, and finally for general admission as an undeclared major.
Petitioner applied for admission to the University‘s 2008 entering class and was rejected. She
sued the University and various University officials, [alleging] that the University‘s
consideration of race in admissions violated the Equal Protection Clause…. The United States
Court of Appeals for the Fifth Circuit … held that Grutter required courts to give substantial
deference to the University, both in the definition of the compelling interest in diversity‘s
benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal.
Applying that standard, the court upheld the University‘s admissions plan….
Grutter made clear that racial ―classifications are constitutional only if they are narrowly tailored
to further compelling governmental interests.‖ And Grutter endorsed Justice Powell‘s
conclusion in Bakke that ―the attainment of a diverse student body ... is a constitutionally
permissible goal for an institution of higher education.‖ Thus, under Grutter, strict scrutiny must
be applied to any admissions program using racial categories or classifications.
According to Grutter, a university‘s ―educational judgment that such diversity is essential to its
educational mission is one to which we defer.‖ Grutter concluded that the decision to pursue
―the educational benefits that flow from student body diversity,‖ that the University deems
integral to its mission is, in substantial measure, an academic judgment to which some, but not
complete, judicial deference is proper under Grutter. A court, of course, should ensure that there
is a reasoned, principled explanation for the academic decision….
80
Once the University has established that its goal of diversity is consistent with strict scrutiny,
however, there must still be a further judicial determination that the admissions process meets
strict scrutiny in its implementation. The University must prove that the means chosen by the
University to attain diversity are narrowly tailored to that goal. On this point, the University
receives no deference. Grutter made clear that it is for the courts, not for university
administrators, to ensure that ―the means chosen to accomplish the government‘s asserted
purpose must be specifically and narrowly framed to accomplish that purpose.‖ True, a court
can take account of a university‘s experience and expertise in adopting or rejecting certain
admissions processes. But, as the Court said in Grutter, it remains at all times the University‘s
obligation to demonstrate, and the Judiciary‘s obligation to determine, that admissions processes
―ensure that each applicant is evaluated as an individual and not in a way that makes an
applicant‘s race or ethnicity the defining feature of his or her application.‖
Narrow tailoring also requires that the reviewing court verify that it is ―necessary‖ for a
university to use race to achieve the educational benefits of diversity. Bakke. This involves a
careful judicial inquiry into whether a university could achieve sufficient diversity without using
racial classifications. Although ―narrow tailoring does not require exhaustion of every
conceivable race-neutral alternative,‖ strict scrutiny does require a court to examine with care,
and not defer to, a university‘s ―serious, good faith consideration of workable race-neutral
alternatives.‖ Grutter (emphasis added). Consideration by the university is of course necessary,
but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied
that no workable race-neutral alternatives would produce the educational benefits of diversity. If
―a nonracial approach ... could promote the substantial interest about as well and at tolerable
administrative expense,‖ then the university may not consider race. A plaintiff, of course, bears
the burden of placing the validity of a university‘s adoption of an affirmative action plan in issue.
But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning
to racial classifications, that available, workable race-neutral alternatives do not suffice.
Rather than perform this searching examination, however, the Court of Appeals held petitioner
could challenge only ―whether the University‘s decision to reintroduce race as a factor in
admissions was made in good faith.‖ And in considering such a challenge, the court would
―presume the University acted in good faith‖ and place on petitioner the burden of rebutting that
presumption. The Court of Appeals held that to ―second-guess the merits‖ of this aspect of the
University‘s decision was a task it was ―ill-equipped to perform‖ and that it would attempt only
to ―ensure that the University‘sdecision to adopt a race-conscious admissions policy followed
from a process of good faith consideration.‖ The Court of Appeals thus concluded that ―the
narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of
deference to the University.‖ Because ―the efforts of the University have been studied, serious,
and of high purpose,‖ the Court of Appeals held that the use of race in the admissions program
fell within ―a constitutionally protected zone of discretion.‖
These expressions of the controlling standard are at odds with Grutter‗s command that ―all racial
classifications imposed by government must be analyzed by a reviewing court under strict
scrutiny.‖ … Grutter did not hold that good faith would forgive an impermissible consideration
of race. It must be remembered that the mere recitation of a benign or legitimate purpose for a
racial classification is entitled to little or no weight. Strict scrutiny does not permit a court to
81
accept a school‘s assertion that its admissions process uses race in a permissible way without a
court giving close analysis to the evidence of how the process works in practice.
The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way
by deferring to the University‘s good faith in its use of racial classifications and affirming the
grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the
litigants and the courts that heard the case requires that it be remanded so that the admissions
process can be considered and judged under a correct analysis….
JUSTICE KAGAN took no part in the consideration or decision of this case.
[The concurring opinions of JUSTICE SCALIA and JUSTICE THOMAS are omitted.]
JUSTICE GINSBURG, dissenting.
The University … is candid about what it is endeavoring to do: It seeks to achieve student-body
diversity through an admissions policy patterned after the Harvard plan referenced as exemplary
in Justice Powell‘s opinion in Bakke. The University has steered clear of a quota system like the
one struck down in Bakke, [and] like so many educational institutions across the Nation, the
University has taken care to follow the model approved by the Court in Grutter v. Bollinger. …
I have several times explained why government actors, including state universities, need not be
blind to the lingering effects of an overtly discriminatory past, the legacy of centuries of lawsanctioned inequality. Among constitutionally permissible options, I remain convinced, those
that candidly disclose their consideration of race are preferable to those that conceal it.‖
Accordingly, I would not return this case for a second look.
As the thorough opinions below show, the University‘s admissions policy flexibly considers race
only as a ―factor of a factor of a factor of a factor‖ in the calculus; followed a yearlong review
through which the University reached the reasonable, good-faith judgment that supposedly raceneutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits
of student-body diversity; and is subject to periodic review to ensure that the consideration of
race remains necessary and proper to achieve the University‘s educational objectives. Justice
Powell‘s opinion in Bakke and the Court‘s decision in Grutter require no further determinations.
82
UNITED STATES
v.
WINDSOR
133 S. Ct. 2675 (2013)
JUSTICE KENNEDY delivered the opinion of the Court.
[In] 1996, as some States were beginning to consider the concept of same-sex marriage, and
before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA).
… Section 3 of DOMA provides as follows: ―In determining the meaning of any Act of
Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word ‗marriage‘ means only a legal union between one man
and one woman as husband and wife, and the word ‗spouse‘ refers only to a person of the
opposite sex who is a husband or a wife.‖ The definitional provision does not by its terms forbid
States from enacting laws permitting same-sex marriages or civil unions or providing state
benefits to residents in that status. The enactment‘s comprehensive definition of marriage for
purposes of all federal statutes and other regulations or directives covered by its terms, however,
does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of
federal law.
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term
relationship. Windsor and Spyer registered as domestic partners when New York City gave that
right to same-sex couples in 1993. Concerned about Spyer‘s health, the couple made the 2007
trip to Canada for their marriage, but they continued to reside in New York City. The State of
New York deems their Ontario marriage to be a valid one. Spyer died in February 2009, and left
her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses,
Windsor did not qualify for the marital exemption from the federal estate tax, which excludes
from taxation ―any interest in property which passes or has passed from the decedent to his
surviving spouse.‖ 26 U.S.C. § 2056(a). Windsor paid $363,053 in estate taxes and sought a
refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor
was not a ―surviving spouse.‖ Windsor commenced this refund suit in the United States District
Court for the Southern District of New York. She contended that DOMA violates the guarantee
of equal protection, as applied to the Federal Government through the Fifth Amendment….
It seems fair to conclude that, until recent years, many citizens had not even considered the
possibility that two persons of the same sex might aspire to occupy the same status and dignity as
that of a man and woman in lawful marriage. For marriage between a man and a woman no
doubt had been thought of by most people as essential to the very definition of that term and to
its role and function throughout the history of civilization. That belief, for many who long have
held it, became even more urgent, more cherished when challenged. For others, however, came
the beginnings of a new perspective, a new insight. Accordingly some States concluded that
same-sex marriage ought to be given recognition and validity in the law for those same-sex
couples who wish to define themselves by their commitment to each other. The limitation of
lawful marriage to heterosexual couples, which for centuries had been deemed both necessary
and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
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Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency
of this issue for same-sex couples who wanted to affirm their commitment to one another before
their children, their family, their friends, and their community. And so New York recognized
same-sex marriages performed elsewhere; and then it later amended its own marriage laws to
permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the
District of Columbia, decided that same-sex couples should have the right to marry and so live
with pride in themselves and their union and in a status of equality with all other married
persons. After a statewide deliberative process that enabled its citizens to discuss and weigh
arguments for and against same-sex marriage, New York acted to enlarge the definition of
marriage to correct what its citizens and elected representatives perceived to be an injustice that
they had not earlier known or understood. …
By history and tradition the definition and regulation of marriage, as will be discussed in more
detail, has been treated as being within the authority and realm of the separate States. Yet it is
further established that Congress, in enacting discrete statutes, can make determinations that bear
on marital rights and privileges…. Though [we have upheld] the constitutionality of limited
federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has
a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole
realm of federal regulations. And its operation is directed to a class of persons that the laws of
New York, and of 11 other States, have sought to protect…. The recognition of civil marriages is
central to state domestic relations law applicable to its residents and citizens. The definition of
marriage is the foundation of the State‘s broader authority to regulate the subject of domestic
relations with respect to the ―protection of offspring, property interests, and the enforcement of
marital responsibilities.‖ ―The states, at the time of the adoption of the Constitution, possessed
full power over the subject of marriage and divorce ... and the Constitution delegated no
authority to the Government of the United States on the subject of marriage and divorce.‖
Haddock v. Haddock (1906). Consistent with this allocation of authority, the Federal
Government, through our history, has deferred to state-law policy decisions with respect to
domestic relations.
Marriage laws vary in some respects from State to State. For example, the required minimum
age is 16 in Vermont, but only 13 in New Hampshire. Likewise the permissible degree of
consanguinity can vary (most States permit first cousins to marry, but a handful—such as Iowa
and Washington—prohibit the practice). But these rules are in every event consistent within each
State. Against this background DOMA rejects the long-established precept that the incidents,
benefits, and obligations of marriage are uniform for all married couples within each State,
though they may vary, subject to constitutional guarantees, from one State to the next.
Despite these considerations, it is unnecessary to decide whether this federal intrusion on state
power is a violation of the Constitution because it disrupts the federal balance. The State‘s power
in defining the marital relation is of central relevance in this case quite apart from principles of
federalism. Here the State‘s decision to give this class of persons the right to marry conferred
upon them a dignity and status of immense import. When the State used its historic and essential
authority to define the marital relation in this way, its role and its power in making the decision
enhanced the recognition, dignity, and protection of the class in their own community. DOMA,
because of its reach and extent, departs from this history and tradition of reliance on state law to
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define marriage. ―Discriminations of an unusual character especially suggest careful
consideration to determine whether they are obnoxious to the constitutional provision.‖ Romer
v. Evans.
The Federal Government uses this state-defined class for the opposite purpose—to impose
restrictions and disabilities. That result requires this Court now to address whether the resulting
injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth
Amendment. What the State of New York treats as alike the federal law deems unlike by a law
designed to injure the same class the State seeks to protect.
[New York‘s] actions were without doubt a proper exercise of its sovereign authority within our
federal system, all in the way that the Framers of the Constitution intended. The dynamics of
state government in the federal system are to allow the formation of consensus respecting the
way the members of a discrete community treat each other in their daily contact and constant
interaction with each other. The States‘ interest in defining and regulating the marital relation,
subject to constitutional guarantees, stems from the understanding that marriage is more than a
routine classification for purposes of certain statutory benefits. Private, consensual sexual
intimacy between two adult persons of the same sex may not be punished by the State, and it can
form ―but one element in a personal bond that is more enduring.‖ Lawrence v. Texas. By its
recognition of the validity of same-sex marriages performed in other jurisdictions and then by
authorizing same-sex unions and same-sex marriages, New York sought to give further
protection and dignity to that bond. For same-sex couples who wished to be married, the State
acted to give their lawful conduct a lawful status. This status is a far-reaching legal
acknowledgment of the intimate relationship between two people, a relationship deemed by the
State worthy of dignity in the community equal with all other marriages. It reflects both the
community‘s considered perspective on the historical roots of the institution of marriage and its
evolving understanding of the meaning of equality.
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic
due process and equal protection principles applicable to the Federal Government. See U.S.
Const., Amdt. 5; Bolling v. Sharpe. The Constitution‘s guarantee of equality ―must at the very
least mean that a bare congressional desire to harm a politically unpopular group cannot‖ justify
disparate treatment of that group. Department of Agriculture v. Moreno. In determining whether
a law is motived by an improper animus or purpose, ―discriminations of an unusual character‖
especially require careful consideration. Romer. DOMA cannot survive under these principles.
The responsibility of the States for the regulation of domestic relations is an important indicator
of the substantial societal impact the State‘s classifications have in the daily lives and customs of
its people. DOMA‘s unusual deviation from the usual tradition of recognizing and accepting
state definitions of marriage here operates to deprive same-sex couples of the benefits and
responsibilities that come with the federal recognition of their marriages. This is strong evidence
of a law having the purpose and effect of disapproval of that class. The avowed purpose and
practical effect of the law here in question are to impose a disadvantage, a separate status, and so
a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority
of the States.
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The history of DOMA‘s enactment and its own text demonstrate that interference with the equal
dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign
power, was more than an incidental effect of the federal statute. It was its essence. The House
Report announced its conclusion that ―it is both appropriate and necessary for Congress to do
what it can to defend the institution of traditional heterosexual marriage.... The effort to redefine
‗marriage‘ to extend to homosexual couples is a truly radical proposal that would fundamentally
alter the institution of marriage.‖ The House concluded that DOMA expresses ―both moral
disapproval of homosexuality, and a moral conviction that heterosexuality better comports with
traditional (especially Judeo–Christian) morality.‖ The stated purpose of the law was to promote
an ―interest in protecting the traditional moral teachings reflected in heterosexual-only marriage
laws.‖ Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The
Defense of Marriage….
DOMA‘s operation in practice confirms this purpose. When New York adopted a law to permit
same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through
a system-wide enactment with no identified connection to any particular area of federal law.
DOMA writes inequality into the entire United States Code. The particular case at hand concerns
the estate tax, but DOMA is more than a simple determination of what should or should not be
allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations
that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions,
copyright, and veterans‘ benefits.
DOMA‘s principal effect is to identify a subset of state-sanctioned marriages and make them
unequal. The principal purpose is to impose inequality, not for other reasons like governmental
efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person.
And DOMA contrives to deprive some couples married under the laws of their State, but not
other couples, of both rights and responsibilities. By creating two contradictory marriage regimes
within the same State, DOMA forces same-sex couples to live as married for the purpose of state
law but unmarried for the purpose of federal law, thus diminishing the stability and predictability
of basic personal relations the State has found it proper to acknowledge and protect. By this
dynamic DOMA undermines both the public and private significance of state-sanctioned samesex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are
unworthy of federal recognition. This places same-sex couples in an unstable position of being in
a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices
the Constitution protects, see Lawrence, and whose relationship the State has sought to dignify.
And it humiliates tens of thousands of children now being raised by same-sex couples. The law
in question makes it even more difficult for the children to understand the integrity and closeness
of their own family and its concord with other families in their community and in their daily
lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government
decree, in visible and public ways. By its great reach, DOMA touches many aspects of married
and family life, from the mundane to the profound. It prevents same-sex married couples from
obtaining government healthcare benefits they would otherwise receive. It deprives them of the
Bankruptcy Code‘s special protections for domestic-support obligations. It forces them to follow
a complicated procedure to file their state and federal taxes jointly. It prohibits them from being
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buried together in veterans‘ cemeteries…. DOMA also brings financial harm to children of
same-sex couples. It raises the cost of health care for families by taxing health benefits provided
by employers to their workers‘ same-sex spouses. And it denies or reduces benefits allowed to
families upon the loss of a spouse and parent, benefits that are an integral part of family security.
The power the Constitution grants it also restrains. And though Congress has great authority to
design laws to fit its own conception of sound national policy, it cannot deny the liberty
protected by the Due Process Clause of the Fifth Amendment. What has been explained to this
point should more than suffice to establish that the principal purpose and the necessary effect of
this law are to demean those persons who are in a lawful same-sex marriage. This requires the
Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the
person protected by the Fifth Amendment of the Constitution.
The liberty protected by the Fifth Amendment‘s Due Process Clause contains within it the
prohibition against denying to any person the equal protection of the laws. Bolling. While the
Fifth Amendment itself withdraws from Government the power to degrade or demean in the way
this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth
Amendment right all the more specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons who are joined
in same-sex marriages made lawful by the State.… The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the
State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace
this protection and treating those persons as living in marriages less respected than others, the
federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined
to those lawful marriages.
CHIEF JUSTICE ROBERTS, dissenting.
[Interests] in uniformity and stability amply justified Congress‘s decision to retain the definition
of marriage that, at that point, had been adopted by every State in our Nation, and every nation in
the world. The majority sees a more sinister motive, pointing out that the Federal Government
has generally (though not uniformly) deferred to state definitions of marriage in the past. That is
true, of course, but none of those prior state-by-state variations had involved differences over
something—as the majority puts it—‖thought of by most people as essential to the very
definition of [marriage] and to its role and function throughout the history of civilization.‖ That
the Federal Government treated this fundamental question differently than it treated variations
over consanguinity or minimum age is hardly surprising—and hardly enough to support a
conclusion that the ―principal purpose‖ of the 342 Representatives and 85 Senators who voted
for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of
legislative history and the banal title of the Act to which the majority points suffice to make such
a showing. At least without some more convincing evidence that the Act‘s principal purpose was
to codify malice, and that it furthered no legitimate government interests, I would not tar the
political branches with the brush of bigotry.
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But while I disagree with the result to which the majority‘s analysis leads it in this case, I think it
more important to point out that its analysis leads no further. The Court does not have before it,
and the logic of its opinion does not decide, the distinct question whether the States, in the
exercise of their ―historic and essential authority to define the marital relation,‖ may continue to
utilize the traditional definition of marriage….
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
[There] are many remarkable things about the majority‘s merits holding. The first is how rootless
and shifting its justifications are. For example, the opinion starts with seven full pages about the
traditional power of States to define domestic relations—initially fooling many readers, I am
sure, into thinking that this is a federalism opinion. But we are eventually told that ―it is
unnecessary to decide whether this federal intrusion on state power is a violation of the
Constitution,‖ and that ―[t]he State‘s power in defining the marital relation is of central relevance
in this case quite apart from principles of federalism‖ because ―the State‘s decision to give this
class of persons the right to marry conferred upon them a dignity and status of immense import.‖
But no one questions the power of the States to define marriage (with the concomitant conferral
of dignity and status), so what is the point of devoting seven pages to describing how long and
well established that power is? Even after the opinion has formally disclaimed reliance upon
principles of federalism, mentions of ―the usual tradition of recognizing and accepting state
definitions of marriage‖ continue. What to make of this? The opinion never explains. My guess
is that the majority, while reluctant to suggest that defining the meaning of ―marriage‖ in federal
statutes is unsupported by any of the Federal Government‘s enumerated powers, nonetheless
needs some rhetorical basis to support its pretense that today‘s prohibition of laws excluding
same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to
be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion‘s references to ―the Constitution‘s guarantee of equality.‖
Near the end of the opinion, we are told that although the ―equal protection guarantee of the
Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific
and all the better understood and preserved‖—what can that mean?—―the Fifth Amendment
itself withdraws from Government the power to degrade or demean in the way this law does.‖
The only possible interpretation of this statement is that the Equal Protection Clause, even the
Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today‘s
holding. But the portion of the majority opinion that explains why DOMA is unconstitutional
begins by citing Bolling v. Sharpe, Department of Agriculture v. Moreno, and Romer v. Evans—
all of which are equal-protection cases. And those three cases are the only authorities that the
Court cites about the Constitution‘s meaning, except for its citation of Lawrence v. Texas (not an
equal-protection case) to support its passing assertion that the Constitution protects the ―moral
and sexual choices‖ of same-sex couples.
Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion
does not resolve and indeed does not even mention what had been the central question in this
litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a
woman are reviewed for more than mere rationality.... In accord with my previously expressed
skepticism about the Court‘s ―tiers of scrutiny‖ approach, I would review this classification only
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for its rationality. As nearly as I can tell, the Court agrees with that; its opinion does not apply
strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But
the Court certainly does not apply anything that resembles that deferential framework.
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need
not justify its holding under either, because it says that DOMA is unconstitutional as ―a
deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,‖
that it violates ―basic due process‖ principles, and that it inflicts an ―injury and indignity‖ of a
kind that denies ―an essential part of the liberty protected by the Fifth Amendment.‖ The
majority never utters the dread words ―substantive due process,‖ perhaps sensing the disrepute
into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does
not argue that same-sex marriage is ―deeply rooted in this Nation‘s history and tradition,‖
Washington v. Glucksberg, a claim that would of course be quite absurd. So would the further
suggestion (also necessary, under our substantive-due-process precedents) that a world in which
DOMA exists is one bereft of ―ordered liberty.‖ Palko v. Connecticut.
Some might conclude that this loaf could have used a while longer in the oven. But that would be
wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe.
The sum of all the Court‘s nonspecific hand-waving is that this law is invalid (maybe on equalprotection grounds, maybe on substantive-due-process grounds, and perhaps with some
amorphous federalism component playing a role) because it is motivated by a ―bare desire to
harm‖ couples in same-sex marriages. It is this proposition with which I will therefore engage.
As I have observed before, the Constitution does not forbid the government to enforce traditional
moral and sexual norms. See Lawrence v. Texas (SCALIA, J., dissenting). [The] Constitution
neither requires nor forbids our society to approve of same-sex marriage, much as it neither
requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed samesex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this
legislation. Their existence ought to be the end of this case. For they give the lie to the Court‘s
conclusion that only those with hateful hearts could have voted ―aye‖ on this Act. And more
importantly, they serve to make the contents of the legislators‘ hearts quite irrelevant…. [The]
majority has declared open season on any law that (in the opinion of the law‘s opponents and any
panel of like-minded federal judges) can be characterized as mean-spirited….
Bear in mind that the object of this condemnation is not the legislature of some once-Confederate
Southern state, but our respected coordinate branches, the Congress and Presidency of the United
States. Laying such a charge against them should require the most extraordinary evidence, and I
would have thought that every attempt would be made to indulge a more anodyne explanation
for the statute. The majority does the opposite—affirmatively concealing from the reader the
arguments that exist in justification.
To choose just one of these … arguments, DOMA avoids difficult choice-of-law issues that will
now arise absent a uniform federal definition of marriage. Imagine a pair of women who marry
in Albany and then move to Alabama, which does not recognize as valid any marriage of parties
of the same sex. When the couple files their next federal tax return, may it be a joint one?
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Which State‘s law controls, for federal-law purposes: their State of celebration (which
recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend
on whether they were just visiting in Albany?)… DOMA avoided all of this uncertainty by
specifying which marriages would be recognized for federal purposes. That is a classic purpose
for a definitional provision.
Further, DOMA preserves the intended effects of prior legislation against then-unforeseen
changes in circumstance…. That is not animus—just stabilizing prudence…. To be sure (as the
majority points out), the legislation is called the Defense of Marriage Act. But to defend
traditional marriage is not to condemn, demean, or humiliate those who would prefer other
arrangements, any more than to defend the Constitution of the United States is to condemn,
demean, or humiliate other constitutions. To hurl such accusations so casually demeans this
institution. In the majority‘s judgment, any resistance to its holding is beyond the pale of
reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute
is to act (the majority is sure) with the purpose to ―disparage,‖ ―injure,‖ ―degrade,‖ ―demean,‖
and ―humiliate‖ our fellow human beings, our fellow citizens, who are homosexual. All that,
simply for supporting an Act that did no more than codify an aspect of marriage that had been
unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually
all societies for virtually all of human history. It is one thing for a society to elect change; it is
another for a court of law to impose change by adjudging those who oppose it hostes humani
generis, enemies of the human race.
The penultimate sentence of the majority‘s opinion is a naked declaration that ―[t]his opinion and
its holding are confined‖ to those couples ―joined in same-sex marriages made lawful by the
State.‖ I have heard such ―bald, unreasoned disclaimers‖ before. When the Court declared a
constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at
all to do with ―whether the government must give formal recognition to any relationship that
homosexual persons seek to enter.‖ Lawrence. Now we are told that DOMA is invalid because it
―demeans the couple, whose moral and sexual choices the Constitution protects‖—with an
accompanying citation of Lawrence. It takes real cheek for today‘s majority to assure us, as it is
going out the door, that a constitutional requirement to give formal recognition to same-sex
marriage is not at issue here—when what has preceded that assurance is a lecture on how
superior the majority‘s moral judgment in favor of same-sex marriage is to the Congress‘s
hateful moral judgment against it. I promise you this: The only thing that will ―confine‖ the
Court‘s holding is its sense of what it can get away with.
I do not mean to suggest disagreement with THE CHIEF JUSTICE‘s view that lower federal courts
and state courts can distinguish today‘s case when the issue before them is state denial of marital
status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion
with such scatter-shot rationales as this one (federalism noises among them) can be distinguished
in many ways. And deserves to be. State and lower federal courts should take the Court at its
word and distinguish away. In my opinion, however, the view that this Court will take of state
prohibition of same-sex marriage is indicated beyond mistaking by today‘s opinion....
In the majority‘s telling, this story is black-and-white: Hate your neighbor or come along with
us. The truth is more complicated. It is hard to admit that one‘s political opponents are not
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monsters, especially in a struggle like this one, and the challenge in the end proves more than
today‘s Court can handle. Too bad. A reminder that disagreement over something so
fundamental as marriage can still be politically legitimate would have been a fit task for what in
earlier times was called the judicial temperament. We might have covered ourselves with honor
today, by promising all sides of this debate that it was theirs to settle and that we would respect
their resolution. We might have let the People decide.
[The dissenting opinion of JUSTICE ALITO is omitted.]
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Five understandings of the scope of Congress’s power
under Section Five of the Fourteenth Amendment
1.
The pure remedial model. Congress may enact laws to punish, enjoin, or provide
compensation for actual violations of the rights guaranteed by § 1 of the Fourteenth
Amendment as interpreted by the Supreme Court.
2.
The deterrence and prevention model. Congress may enact laws that not only remedy
actual violations, but also deter or prevent potential future violations, of the rights
guaranteed by § 1 as interpreted by the Supreme Court.
3.
The Necessary & Proper Clause model. Congress may enact such laws as may be
necessary and proper in its judgment to give meaningful effect to the rights guaranteed by
§ 1 as interpreted by the Supreme Court.
4.
The one-way ratchet model. Congress may enact laws that enlarge the scope of rights
beyond those guaranteed by § 1 as interpreted by the Supreme Court, but may not enact
laws that restrict the scope of rights to less than what is guaranteed by § 1 as interpreted
by the Supreme Court.
5.
The two-way ratchet model. Congress may interpret § 1 for itself, and may enact laws
that enlarge the scope of rights beyond those guaranteed by § 1 as interpreted by the
Supreme Court, as well as laws that restrict the scope of rights to less than what is
guaranteed by § 1 as interpreted by the Supreme Court.
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Lawrence Gene Sager
Fair Measure: The Legal Status of Underenforced Constitutional Norms
91 Harv. L. Rev. 1212 (1978) (excerpt)
* * * Views of equal protection may vary, but a reasonable statement of the concept for purposes
of this discussion is: ―A state may treat persons differently only when it is fair to do so.‖
In its present incarnation, the federal judicial construct for the application of the equal protection
clause appears to comprise three distinct strands. First, there is the permissive strand reflected in
the ―rational relationship test,‖ which is applied in most situations. … Second, there is a strand of
the doctrine which singles out a few types of classification for the severe scrutiny of the
―compelling state interest test,‖ a test which precious few enactments can survive. And third,
there is a highly amorphous intermediate strand of equal protection analysis. …
Under this federal judicial construct of the equal protection clause, only a small part of the
universe of plausible claims of unequal and unjust treatment by government is seriously
considered by the federal courts; the vast majority of such claims are dismissed out of hand. …
There are reasons which explain and to some degree justify federal judicial restraint in the
application of the equal protection clause …; these reasons have been extensively rehearsed in
the literature of judicial restraint. In the most general of terms, the claims for restraint typically
turn on the propriety of unelected federal judges‘ displacing the judgments of elected state
officials, or upon the competence of federal courts to prescribe workable standards of state
conduct and devise measures to enforce them. …
What I want to distinguish between here are reasons for limiting a judicial construct of a
constitutional concept which are based upon questions of propriety or capacity and those which
are based upon an understanding of the concept itself. The former I will refer to as
―institutional,‖ the latter as ―analytical.‖ Institutional rather than analytical reasons appear to
have prompted the broad exclusion of state tax and regulatory measures from the reach of the
equal protection construct fashioned by the federal judiciary. This is what creates the disparity
between this construct and a true conception of equal protection, and thus substantiates the claim
that equal protection is an underenforced constitutional norm.
It is not only the claims of commercial equity involved in equal protection challenges to schemes
of taxation or economic regulation which are rebuffed because of institutional concerns; such
concerns have figured in other contexts as well. In San Antonio Independent School District v.
Rodriguez, for example, Justice Powell, writing for the majority, acknowledged that institutional
concerns significantly informed the Court‘s view that the equal protection clause was not
violated by Texas‘ system of financing public schools largely through local property taxation.
Among the concerns voiced by Justice Powell were: (1) the formulation of schemes of taxation
requires an ―expertise and ... familiarity with local problems‖ which the Justices of the Supreme
Court lack; (2) school finance and management in particular raise very complicated and
controversial questions, and an inexperienced and inexpert Supreme Court ought not to impose
―inflexible constitutional restraints‖ which curtail state experimentation; and (3) substantial
93
federalism concerns are threatened by the prospect of upsetting the ―systems of financing public
education presently in existence in virtually every State.‖ Whatever view one takes of these
concerns, it is difficult to understand them as speaking even indirectly to the scope or content of
the concept of equal protection; rather, they are claims which address the question of to what
limits the federal judiciary should reach in interpreting and enforcing that concept. They are, in
other words, arguments which support the underenforcement of the equal protection clause by
the federal courts. …
Conventional analysis does not distinguish between fully enforced and underenforced
constitutional norms; as a general matter, the scope of a constitutional norm is considered to be
coterminous with the scope of its judicial enforcement. … [Yet] where a federal judicial
construct is found not to extend to certain official behavior because of institutional concerns
rather than analytical perceptions, it seems strange to regard the resulting decision as a statement
about the meaning of the constitutional norm in question. After all, what the members of the
federal tribunal have actually determined is that there are good reasons for stopping short of
exhausting the content of the constitutional concept with which they are dealing; the limited
judicial construct which they have fashioned or accepted is occasioned by this determination and
does not derive from a judgment about the scope of the constitutional concept itself.
From this observation flows the thesis which I want to advance here: constitutional norms which
are underenforced by the federal judiciary should be understood to be legally valid to their full
conceptual limits, and federal judicial decisions which stop short of these limits should be
understood as delineating only the boundaries of the federal courts‘ role in enforcing the norm.
By ―legally valid,‖ I mean that the unenforced margins of underenforced norms should have the
full status of positive law which we generally accord to the norms of our Constitution, save only
that the federal judiciary will not enforce these margins. …
What is likely to make this view troubling to the contemporary American lawyer is our tendency,
reinforced by the practical dominance of the Supreme Court as the final arbiter of our
constitutional affairs, to equate the existence of a constitutional norm with the possibility of its
enforcement against an offending official. …
The idea that the judicially enforced scope of a constitutional norm may be narrower than its
scope as legal authority in other contexts may be unconventional today, but it enjoys a venerable
provenance. James Bradley Thayer‘s essay on The Origin and Scope of the American Doctrine
of Constitutional Law is an important intellectual fount of the judicial restraint thesis. Thayer
argued for the rule of clear mistake—that is, that ―an Act of the legislature is not to be declared
void unless the violation of the constitution is so manifest as to leave no room for reasonable
doubt.‖… The rule of clear mistake … is not founded on the idea that only manifestly abusive
legislative enactments are unconstitutional, but rather on the idea that only such manifest error
entitles a court to displace the prior constitutional ruling of the enacting legislature. It is a rule of
judicial behavior….
The judicial restraint thesis has retained its vitality, and continues to be instrumental in the
judicial enforcement of the Constitution, as the federal judicial enforcement of the equal
protection clause so clearly indicates. But, under the influence of a vigorous tradition of Supreme
94
Court enforcement of constitutional norms, we have come to lose sight of the fact that some
judicial decisions reflect the tradition of judicial restraint and should not be understood to be
exhaustive statements of the meaning of the implicated constitutional norms. …
In sum, … judicially underenforced constitutional norms should be regarded as legally valid to
their conceptual limits. When the federal courts restrain themselves for reasons of competence
and institutional propriety rather than reasons of constitutional substance, it is incongruous to
treat the products of such restraint as authoritative determinations of constitutional substance.
***
Section 5 of the fourteenth amendment provides: ―Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.‖ …
At least three questions present themselves in this area: (1) can Congress, in the name of
enforcement of the fourteenth amendment‘s substantive provisions, go beyond the judicially
established boundaries of these provisions; (2) if so, how far (and in what directions) does this
authority to overreach the Court extend; and (3) what is the analytical basis for this apparently
anomalous expansion of authority? Coherent analysis of this nest of section 5 issues is very
much advanced if one brings to the task the view that judicially underenforced constitutional
norms have a legal vitality which extends beyond the scope of their federal judicial enforcement.
Katzenbach v. Morgan was the occasion for what remains the most generous Supreme Court
statement of Congress‘ authority pursuant to section 5 of the fourteenth amendment. There, the
Court upheld section 4(e) of the Voting Rights Acts of 1965, which was enacted principally to
prevent the states from using English literacy tests to deny the right to vote to natives of Puerto
Rico educated in Spanish. Justice Brennan, writing for the majority in Katzenbach, set out two
rationales for Congress‘ authority under section 5 to thus restrict the states‘ capacity to impose
literacy requirements, both of which presupposed that such requirements would not be
independently found by the Court to be invalid under the equal protection clause. Congress
could be acting to remedy unconstitutional discrimination by conferring on groups like the
Puerto Ricans of New York ―enhanced political power‖ with which to secure equal treatment at
the hands of public officials. Alternatively, Justice Brennan argued, Congress could have made
its own determination that the literacy requirement itself was a violation of equal protection, and
the Court should pay broad deference to such a determination.
The first of these propositions is not, in the abstract, controversial. It merely recognizes that
Congress can exercise some choice and sophistication in fashioning the means by which
fourteenth amendment violations are to be redressed. The second rationale for the Katzenbach
holding is at once more controversial and more troubling. One obvious difficulty with this
premise of deference is that it is to a large degree inconsistent with the role which the Court has
assumed in the sphere of constitutional liberties. … [T]he modern judicial tradition has squarely
placed responsibility for interpretation of the personal guarantees of the Constitution in the hands
of the Court. …
A second prominent problem of the deference theory as modeled by Justice Brennan is the
95
―ratchet‖ he wished to build into it. Justice Brennan was unwilling to pay what to the dissenters
in Katzenbach was the inevitable price of deference to Congress, namely the acceptance of future
congressional determinations which contracted the scope of fourteenth amendment guarantees
and explicitly permitted governmental practices which the Court would otherwise have declared
to violate these guarantees. His statement of the ratchet was contained in a footnote: ―We
emphasize that Congress‘ power under § 5 is limited to adopting measures to enforce the
guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these
guarantees.‖ The question suggested by this assertion is obvious: if Congress‘ judgment is to be
deferred to above the judicially established floor, why should not judgments below this floor
enjoy the same deference? …
The idea that underenforced constitutional norms are legally valid beyond the boundaries of their
judicial enforcement is a means for overcoming the analytical difficulties which otherwise inhere
in the legislative deference rationale of Katzenbach v. Morgan. Perceived through this lens,
section 5 of the fourteenth amendment can be understood to give Congress the authority to enact
legislation which fills in that body‘s conception of the equal protection clause. Congress can
legislate against a broader swath of state practices than the Court has found or would find to
violate the norm of equal protection, because the federal judiciary‘s enforcement of that norm
fails to exhaust its scope. Congress in such a circumstance is enforcing a judicially unenforced
margin of the equal protection clause and thereby moving our legal system closer to a full
enforcement of an important but elusive constitutional norm.
The difficulties of the deference rationale of Katzenbach v. Morgan are dissipated by this
analysis. If the federal judiciary is constrained by institutional concerns from exhausting the
concept of equal protection, congressional attempts pursuant to section 5 to enlarge upon the
judiciary‘s limited construct do no violence to the general notion that the federal judiciary‘s
readings of the Constitution are dispositive within our system. Congress‘ section 5 power to
prohibit state conduct which the Supreme Court would not find to violate the substantive norms
of the fourteenth amendment is limited to those categories of conduct which the Court has
condemned to analytical limbo because of its institutional concerns. Where the Court determines
that given conduct violates some norm of the Constitution, Congress cannot undo that result.
And where, because of analytical rather than institutional concerns, the Court has determined
that given conduct does no violence to the substantive norm of the fourteenth amendment,
Congress cannot use section 5 as authority to legislate against that conduct. But where the Court
has, on institutional grounds, stopped significantly short of full enforcement of a substantive
norm of the fourteenth amendment, Congress is empowered by section 5 to address conduct
falling within the unenforced margin of the norm.
The expanded view of the legal status of judicially underenforced constitutional norms can thus
explain the result in Katzenbach v. Morgan, while avoiding the analytical pitfalls which impede
other explanatory efforts. But there is an affirmative virtue to this analysis as well. It depicts a
vision of judicial and legislative cooperation in the molding of concrete standards through which
elusive and complex constitutional norms like equal protection can come to be applied. The
judiciary remains the guardian of fundamental notions of fair process and just treatment at their
core, while the legislature is permitted to refine these notions beyond the capacity of the
judiciary to do so. …
96
Note on Employment Division v. Smith and the Religious Freedom Restoration Act
In Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), the Supreme
Court held that the Free Exercise Clause of the First Amendment (which has been incorporated
against the States via the Fourteenth Amendment) does not prohibit the government from
enacting and enforcing generally applicable laws, even if those laws substantially burden
religious practice. The respondent, Smith, was an adherent to a Native American religion whose
rituals involve the smoking of peyote, a controlled substance. State law prohibited the use of
peyote, though without any specific reference to religious uses. Smith claimed that the Free
Exercise Clause shielded his religious uses of peyote from the force of the law. The Court
rejected his claim. It held that laws burdening religious practice violate the Free Exercise Clause
only if they are intended to burden or discriminate against such practice. Neutral, generally
applicable laws enacted on the basis of legitimate motives do not run afoul of the Free Exercise
Clause simply because they have the effect of burdening religious practice.
In response to Smith, Congress overwhelmingly passed the Religious Freedom Restoration Act
of 1993 (―RFRA‖). RFRA provides that no action by federal, state, or local government may
substantially burden a person‘s religious exercise unless the government can show that its action
is the least restrictive means of furthering a compelling government interest.
[Question: Under what authority was RFRA passed?]
97
TENNESSEE
v.
LANE
541 U.S. 509 (2004)
JUSTICE STEVENS delivered the opinion of the Court.
Title II of the Americans with Disabilities Act of 1990 (ADA or Act), provides that ―no qualified
individual with a disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs or activities of a public entity, or be subjected
to discrimination by any such entity.‖ The question presented in this case is whether Title II
exceeds Congress‘ power under § 5 of the Fourteenth Amendment.
In August 1998, respondents George Lane and Beverly Jones filed this action against the State of
Tennessee and a number of Tennessee counties, alleging past and ongoing violations of Title II.
Respondents, both of whom are paraplegics who use wheelchairs for mobility, claimed that they
were denied access to, and the services of, the state court system by reason of their disabilities.
Lane alleged that he was compelled to appear to answer a set of criminal charges on the second
floor of a county courthouse that had no elevator. At his first appearance, Lane crawled up two
flights of stairs to get to the courtroom. When Lane returned to the courthouse for a hearing, he
refused to crawl again or to be carried by officers to the courtroom; he consequently was
arrested and jailed for failure to appear. Jones, a certified court reporter, alleged that she has not
been able to gain access to a number of county courthouses, and, as a result, has lost both work
and an opportunity to participate in the judicial process. Respondents sought damages and
equitable relief.
The State moved to dismiss the suit on the ground that it was barred by the Eleventh
Amendment.… The United States intervened to defend Title II‘s abrogation of the States‘
Eleventh Amendment immunity.
II
The ADA was passed by large majorities in both Houses of Congress after decades of
deliberation and investigation into the need for comprehensive legislation to address
discrimination against persons with disabilities. In the years immediately preceding the ADA‘s
enactment, Congress held 13 hearings and created a special task force that gathered evidence
from every State in the Union. The conclusions Congress drew from this evidence are set forth
in the task force and Committee Reports, described in lengthy legislative hearings, and
summarized in the preamble to the statute. Central among these conclusions was Congress‘
finding that ―individuals with disabilities are a discrete and insular minority who have been faced
with restrictions and limitations, subjected to a history of purposeful unequal treatment, and
relegated to a position of political powerlessness in our society, based on characteristics that are
beyond the control of such individuals and resulting from stereotypic assumptions not truly
indicative of the individual ability of such individuals to participate in, and contribute to,
society.‖
98
Invoking ―the sweep of congressional authority, including the power to enforce the fourteenth
amendment and to regulate commerce,‖ the ADA is designed ―to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities.‖ It forbids discrimination against persons with disabilities in three major areas of
public life: employment, which is covered by Title I of the statute; public services, programs, and
activities, which are the subject of Title II; and public accommodations, which are covered by
Title III.
Title II prohibits any public entity from discriminating against ―qualified‖ persons with
disabilities in the provision or operation of public services, programs, or activities. The Act
defines the term ―public entity‖ to include state and local governments, as well as their agencies
and instrumentalities. Persons with disabilities are ―qualified‖ if they, ―with or without
reasonable modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids and services, mee[t]
the essential eligibility requirements for the receipt of services or the participation in programs or
activities provided by a public entity.‖ Title II‘s enforcement provision … authorizes private
citizens to bring suits for money damages.
The Eleventh Amendment renders the States immune from ―any suit in law or equity,
commenced or prosecuted ... by Citizens of another State, or by Citizens or Subjects of any
Foreign State.‖ Even though the Amendment ―by its terms ... applies only to suits against a State
by citizens of another State,‖ our cases have repeatedly held that this immunity also applies to
unconsented suits brought by a State‘s own citizens. E.g., Garrett. Our cases have also held that
Congress may abrogate the State‘s Eleventh Amendment immunity. To determine whether it has
done so in any given case, we ―must resolve two predicate questions: first, whether Congress
unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether
Congress acted pursuant to a valid grant of constitutional authority.‖
The first question is easily answered in this case. The Act specifically provides: ―A State shall
not be immune under the eleventh amendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a violation of this chapter.‖ … The
question, then, is whether Congress had the power to give effect to its intent.
In Fitzpatrick v. Bitzer, we held that Congress can abrogate a State‘s sovereign immunity when it
does so pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment to
enforce the substantive guarantees of that Amendment. This enforcement power, as we have
often acknowledged, is a ―broad power indeed.‖ It includes the authority both to remedy and to
deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat
broader swath of conduct, including that which is not itself forbidden by the Amendment‘s text.
We have thus repeatedly affirmed that Congress may enact so-called prophylactic legislation that
proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.
… When Congress seeks to remedy or prevent unconstitutional discrimination, § 5 authorizes it
to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in
intent, to carry out the basic objectives of the Equal Protection Clause.
99
Congress‘ § 5 power is not, however, unlimited. While Congress must have a wide berth in
devising appropriate remedial and preventative measures for unconstitutional actions, those
measures may not work a ―substantive change in the governing law.‖ Boerne. In Boerne, we
recognized that the line between remedial legislation and substantive redefinition is ―not easy to
discern,‖ and that ―Congress must have wide latitude in determining where it lies.‖ But we also
confirmed that ―the distinction exists and must be observed,‖ and set forth a test for so observing
it: Section 5 legislation is valid if it exhibits ―a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.‖ …
Applying the Boerne test in Garrett, we concluded that Title I of the ADA was not a valid
exercise of Congress‘ § 5 power to enforce the Fourteenth Amendment‘s prohibition on
unconstitutional disability discrimination in public employment. [W]e concluded Congress‘
exercise of its prophylactic § 5 power was unsupported by a relevant history and pattern of
constitutional violations. Although the dissent pointed out that Congress had before it a great
deal of evidence of discrimination by the States against persons with disabilities, the Court‘s
opinion noted that the ―overwhelming majority‖ of that evidence related to ―the provision of
public services and public accommodations, which areas are addressed in Titles II and III,‖
rather than Title I. We also noted that neither the ADA‘s legislative findings nor its legislative
history reflected a concern that the States had been engaging in a pattern of unconstitutional
employment discrimination.… Finally, we concluded that Title I‘s broad remedial scheme was
insufficiently targeted to remedy or prevent unconstitutional discrimination in public
employment. Taken together, the historical record and the broad sweep of the statute suggested
that Title I‘s true aim was not so much to enforce the Fourteenth Amendment‘s prohibitions
against disability discrimination in public employment as it was to ―rewrite‖ this Court‘s
Fourteenth Amendment jurisprudence.
In view of the significant differences between Titles I and II, however, Garrett left open the
question whether Title II is a valid exercise of Congress‘ § 5 enforcement power. It is to that
question that we now turn.
The first step of the Boerne inquiry requires us to identify the constitutional right or rights that
Congress sought to enforce when it enacted Title II. In Garrett we identified Title I‘s purpose as
enforcement of the Fourteenth Amendment‘s command that ―all persons similarly situated
should be treated alike.‖ As we observed, classifications based on disability violate that
constitutional command if they lack a rational relationship to a legitimate governmental purpose.
Cleburne.
Title II, like Title I, seeks to enforce this prohibition on irrational disability discrimination. But
it also seeks to enforce a variety of other basic constitutional guarantees, infringements of which
are subject to more searching judicial review. These rights include some, like the right of access
to the courts at issue in this case, that are protected by the Due Process Clause of the Fourteenth
Amendment. The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as
applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant such
as respondent Lane the right to be present at all stages of the trial where his absence might
frustrate the fairness of the proceedings. The Due Process Clause also requires the States to
afford certain civil litigants a ―meaningful opportunity to be heard‖ by removing obstacles to
100
their full participation in judicial proceedings. We have held that the Sixth Amendment
guarantees to criminal defendants the right to trial by a jury composed of a fair cross section of
the community, noting that the exclusion of identifiable segments playing major roles in the
community cannot be squared with the constitutional concept of jury trial. And, finally, we have
recognized that members of the public have a right of access to criminal proceedings secured by
the First Amendment.
Whether Title II validly enforces these constitutional rights is a question that must be judged
with reference to the historical experience which it reflects. While § 5 authorizes Congress to
enact reasonably prophylactic remedial legislation, the appropriateness of the remedy depends on
the gravity of the harm it seeks to prevent. …
It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title
II against a backdrop of pervasive unequal treatment in the administration of state services and
programs, including systematic deprivations of fundamental rights. For example, as of 1979,
most States categorically disqualified ―idiots‖ from voting, without regard to individual capacity.
The majority of these laws remain on the books, and have been the subject of legal challenge as
recently as 2001. Similarly, a number of States have prohibited and continue to prohibit persons
with disabilities from engaging in activities such as marrying and serving as jurors. The
historical experience that Title II reflects is also documented in this Court‘s cases, which have
identified unconstitutional treatment of disabled persons by state agencies in a variety of settings,
including unjustified commitment, the abuse and neglect of persons committed to state mental
health hospitals, and irrational discrimination in zoning decisions. The decisions of other courts,
too, document a pattern of unequal treatment in the administration of a wide range of public
services, programs, and activities, including the penal system, public education, and voting.
Notably, these decisions also demonstrate a pattern of unconstitutional treatment in the
administration of justice.
This pattern of disability discrimination persisted despite several federal and state legislative
efforts to address it. In the deliberations that led up to the enactment of the ADA, Congress
identified important shortcomings in existing laws that rendered them ―inadequate to address the
pervasive problems of discrimination that people with disabilities are facing.‖ It also uncovered
further evidence of those shortcomings, in the form of hundreds of examples of unequal
treatment of persons with disabilities by States and their political subdivisions. As the Court‘s
opinion in Garrett observed, the ―overwhelming majority‖ of these examples concerned
discrimination in the administration of public programs and services.
With respect to the particular services at issue in this case, Congress learned that many
individuals, in many States across the country, were being excluded from courthouses and court
proceedings by reason of their disabilities. A report before Congress showed that some 76% of
public services and programs housed in state-owned buildings were inaccessible to and unusable
by persons with disabilities, even taking into account the possibility that the services and
programs might be restructured or relocated to other parts of the buildings. Congress itself heard
testimony from persons with disabilities who described the physical inaccessibility of local
courthouses. And its appointed task force heard numerous examples of the exclusion of persons
with disabilities from state judicial services and programs, including exclusion of persons with
101
visual impairments and hearing impairments from jury service, failure of state and local
governments to provide interpretive services for the hearing impaired, failure to permit the
testimony of adults with developmental disabilities in abuse cases, and failure to make
courtrooms accessible to witnesses with physical disabilities. …
The conclusion that Congress drew from this body of evidence is set forth in the text of the ADA
itself: ―[D]iscrimination against individuals with disabilities persists in such critical areas as ...
education, transportation, communication, recreation, institutionalization, health services, voting,
and access to public services.‖ This finding, together with the extensive record of disability
discrimination that underlies it, makes clear beyond peradventure that inadequate provision of
public services and access to public facilities was an appropriate subject for prophylactic
legislation.
The only question that remains is whether Title II is an appropriate response to this history and
pattern of unequal treatment. At the outset, we must determine the scope of that inquiry. Title
II—unlike … the other statutes we have reviewed for validity under § 5—reaches a wide array
of official conduct in an effort to enforce an equally wide array of constitutional guarantees.
Petitioner urges us both to examine the broad range of Title II‘s applications all at once, and to
treat that breadth as a mark of the law‘s invalidity. According to petitioner, the fact that Title II
applies not only to public education and voting-booth access but also to seating at state-owned
hockey rinks indicates that Title II is not appropriately tailored to serve its objectives. But
nothing in our case law requires us to consider Title II, with its wide variety of applications, as
an undifferentiated whole. Whatever might be said about Title II‘s other applications, the
question presented in this case is not whether Congress can validly subject the States to private
suits for money damages for failing to provide reasonable access to hockey rinks, or even to
voting booths, but whether Congress had the power under § 5 to enforce the constitutional right
of access to the courts. Because we find that Title II unquestionably is valid § 5 legislation as it
applies to the class of cases implicating the accessibility of judicial services, we need go no
further.
Congress‘ chosen remedy for the pattern of exclusion and discrimination described above, Title
II‘s requirement of program accessibility, is congruent and proportional to its object of enforcing
the right of access to the courts. The unequal treatment of disabled persons in the administration
of judicial services has a long history, and has persisted despite several legislative efforts to
remedy the problem of disability discrimination. Faced with considerable evidence of the
shortcomings of previous legislative responses, Congress was justified in concluding that this
difficult and intractable problem warranted added prophylactic measures in response.
The remedy Congress chose is nevertheless a limited one. Recognizing that failure to
accommodate persons with disabilities will often have the same practical effect as outright
exclusion, Congress required the States to take reasonable measures to remove architectural and
other barriers to accessibility. But Title II does not require States to employ any and all means to
make judicial services accessible to persons with disabilities, and it does not require States to
compromise their essential eligibility criteria for public programs. It requires only ― reasonable
modifications‖ that would not fundamentally alter the nature of the service provided, and only
when the individual seeking modification is otherwise eligible for the service. …
102
This duty to accommodate is perfectly consistent with the well-established due process principle
that, within the limits of practicability, a State must afford to all individuals a meaningful
opportunity to be heard in its courts. Our cases have recognized a number of affirmative
obligations that flow from this principle: the duty to waive filing fees in certain family-law and
criminal cases, the duty to provide transcripts to criminal defendants seeking review of their
convictions, and the duty to provide counsel to certain criminal defendants. Each of these cases
makes clear that ordinary considerations of cost and convenience alone cannot justify a State‘s
failure to provide individuals with a meaningful right of access to the courts. Judged against this
backdrop, Title II‘s affirmative obligation to accommodate persons with disabilities in the
administration of justice cannot be said to be ―so out of proportion to a supposed remedial or
preventive object that it cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior.‖ Boerne. It is, rather, a reasonable prophylactic measure, reasonably
targeted to a legitimate end.
For these reasons, we conclude that Title II, as it applies to the class of cases implicating the
fundamental right of access to the courts, constitutes a valid exercise of Congress‘ § 5 authority
to enforce the guarantees of the Fourteenth Amendment. The judgment of the Court of Appeals
is therefore affirmed.
It is so ordered.
[The concurring opinions of JUSTICES SOUTER and GINSBURG are omitted.]
CHIEF JUSTICE REHNQUIST, with whom JUSTICES KENNEDY and THOMAS join, dissenting.
In this case, the task of identifying the scope of the relevant constitutional protection is more
difficult [than in Garrett] because Title II purports to enforce a panoply of constitutional rights
of disabled persons: not only the equal protection right against irrational discrimination, but also
certain rights protected by the Due Process Clause. However, because the Court ultimately
upholds Title II ―as it applies to the class of cases implicating the fundamental right of access to
the courts,‖ the proper inquiry focuses on the scope of those due process rights.
Having traced the metes and bounds of the constitutional rights at issue, the next step in the
congruence-and-proportionality inquiry requires us to examine whether Congress identified a
history and pattern of violations of these constitutional rights by the States with respect to the
disabled. This step is crucial to determining whether Title II is a legitimate attempt to remedy or
prevent actual constitutional violations by the States or an illegitimate attempt to rewrite the
constitutional provisions it purports to enforce. Indeed, ―Congress‘ § 5 power is appropriately
exercised only in response to state transgressions.‖ Garrett (emphasis added). But the majority
identifies nothing in the legislative record that shows Congress was responding to widespread
violations of the due process rights of disabled persons.
Rather than limiting its discussion of constitutional violations to the due process rights on which
it ultimately relies, the majority sets out on a wide-ranging account of societal discrimination
against the disabled. This digression recounts historical discrimination against the disabled
103
through institutionalization laws, restrictions on marriage, voting, and public education,
conditions in mental hospitals, and various other forms of unequal treatment in the
administration of public programs and services. Some of this evidence would be relevant if the
Court were considering the constitutionality of the statute as a whole; but the Court rejects that
approach in favor of a narrower ―as-applied‖ inquiry. …
Even if it were proper to consider this broader category of evidence, much of it does not concern
unconstitutional action by the States. The bulk of the Court‘s evidence concerns discrimination
by nonstate governments, rather than the States themselves. We have repeatedly held that such
evidence is irrelevant to the inquiry whether Congress has validly abrogated Eleventh
Amendment immunity, a privilege enjoyed only by the sovereign States. …
With respect to the due process ―access to the courts‖ rights on which the Court ultimately relies,
Congress‘ failure to identify a pattern of actual constitutional violations by the States is even
more striking. Indeed, there is nothing in the legislative record or statutory findings to indicate
that disabled persons were systematically denied the right to be present at criminal trials, denied
the meaningful opportunity to be heard in civil cases, unconstitutionally excluded from jury
service, or denied the right to attend criminal trials.4 …
Even if the anecdotal evidence and conclusory statements relied on by the majority could be
properly considered, the mere existence of an architecturally ―inaccessible‖ courthouse—i.e., one
a disabled person cannot utilize without assistance—does not state a constitutional violation. A
violation of due process occurs only when a person is actually denied the constitutional right to
access a given judicial proceeding. We have never held that a person has a constitutional right to
make his way into a courtroom without any external assistance. Indeed, the fact that the State
may need to assist an individual to attend a hearing has no bearing on whether the individual
successfully exercises his due process right to be present at the proceeding. Nor does an
―inaccessible‖ courthouse violate the Equal Protection Clause, unless it is irrational for the State
not to alter the courthouse to make it ―accessible.‖ But financial considerations almost always
furnish a rational basis for a State to decline to make those alterations. Thus, evidence regarding
inaccessible courthouses, because it is not evidence of constitutional violations, provides no basis
to abrogate States‘ sovereign immunity. …
[Nor is] Title II congruent and proportional to the constitutional rights it purports to enforce and
the record of constitutional violations adduced by Congress. … The ADA‘s findings make clear
that Congress believed it was attacking ―discrimination‖ in all areas of public services, as well as
the ―discriminatory effect‖ of ―architectural, transportation, and communication barriers.‖ In
sum, Title II requires, on pain of money damages, special accommodations for disabled persons
in virtually every interaction they have with the State.
4
Certainly, respondents Lane and Jones were not denied these constitutional rights. The majority admits that Lane
was able to attend the initial hearing of his criminal trial. Ante, at 1982. Lane was arrested for failing to appear at
his second hearing only after he refused assistance from officers dispatched by the court to help him to the
courtroom. Ante, at 1982. The court conducted a preliminary hearing in the first-floor library to accommodate
Lane‘s disability, App. to Pet. for Cert. 16, and later offered to move all further proceedings in the case to a
handicapped-accessible courthouse in a nearby town. In light of these facts, it can hardly be said that the State
violated Lane‘s right to be present at his trial; indeed, it made affirmative attempts to secure that right. Respondent
Jones, a disabled court reporter, does not seriously contend that she suffered a constitutional injury.
104
Despite subjecting States to this expansive liability, the broad terms of Title II do nothing to
limit the coverage of the Act to cases involving arguable constitutional violations. By requiring
special accommodation and the elimination of programs that have a disparate impact on the
disabled, Title II prohibits far more state conduct than does the equal protection ban on irrational
discrimination. We invalidated Title I‘s similar requirements in Garrett, observing that ―[i]f
special accommodations for the disabled are to be required, they have to come from positive law
and not through the Equal Protection Clause.‖ Title II fails for the same reason. Like Title I,
Title II may be laudable public policy, but it cannot be seriously disputed that it is also an
attempt to legislatively redefine the States‘ legal obligations under the Fourteenth Amendment.
The majority, however, claims that Title II also vindicates fundamental rights protected by the
Due Process Clause—in addition to access to the courts—that are subject to heightened
Fourteenth Amendment scrutiny. But Title II is not tailored to provide prophylactic protection of
these rights; instead, it applies to any service, program, or activity provided by any entity. Its
provisions affect transportation, health, education, and recreation programs, among many others,
all of which are accorded only rational-basis scrutiny under the Equal Protection Clause. A
requirement of accommodation for the disabled at a state-owned amusement park or sports
stadium, for example, bears no permissible prophylactic relationship to enabling disabled
persons to exercise their fundamental constitutional rights.… Viewed as a whole, then, there is
little doubt that Title II of the ADA does not validly abrogate state sovereign immunity.
The majority concludes that Title II‘s massive overbreadth can be cured by considering the
statute only ―as it applies to the class of cases implicating the accessibility of judicial services.‖ I
have grave doubts about importing an ―as applied‖ approach into the § 5 context. While the
majority is of course correct that this Court normally only considers the application of a statute to
a particular case, the proper inquiry under City of Boerne and its progeny is somewhat different.
In applying the congruence-and-proportionality test, we ask whether Congress has attempted to
statutorily redefine the constitutional rights protected by the Fourteenth Amendment. This
question can only be answered by measuring the breadth of a statute‘s coverage against the scope
of the constitutional rights it purports to enforce and the record of violations it purports to
remedy.
In conducting its as-applied analysis, however, the majority posits a hypothetical statute, never
enacted by Congress, that applies only to courthouses. The effect is to rig the congruence-andproportionality test by artificially constricting the scope of the statute to closely mirror a
recognized constitutional right. But Title II is not susceptible of being carved up in this manner;
it applies indiscriminately to all ―services,‖ ―programs,‖ or ―activities‖ of any ―public entity.‖
Thus, the majority‘s approach is not really an assessment of whether Title II is ―appropriate
legislation‖ at all, U.S. Const., Amdt. 14, § 5 (emphasis added), but a test of whether the Court
can conceive of a hypothetical statute narrowly tailored enough to constitute valid prophylactic
legislation.
I fear that the Court‘s adoption of an as-applied approach eliminates any incentive for Congress
to craft § 5 legislation for the purpose of remedying or deterring actual constitutional violations.
Congress can now simply rely on the courts to sort out which hypothetical applications of an
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undifferentiated statute, such as Title II, may be enforced against the States. All the while, States
will be subjected to substantial litigation in a piecemeal attempt to vindicate their Eleventh
Amendment rights. The majority‘s as-applied approach simply cannot be squared with either our
recent precedent or the proper role of the Judiciary. …
Moreover, even in the courthouse-access context, Title II requires substantially more than the
Due Process Clause. Title II subjects States to private lawsuits if, inter alia, they fail to make
―reasonable modifications‖ to facilities, such as removing ―architectural ... barriers.‖ Yet the
statute is not limited to occasions when the failure to modify results, or will likely result, in an
actual due process violation—i.e., the inability of a disabled person to participate in a judicial
proceeding. Indeed, liability is triggered if an inaccessible building results in a disabled person
being ―subjected to discrimination‖—a term that presumably encompasses any sort of
inconvenience in accessing the facility, for whatever purpose. …
JUSTICE SCALIA, dissenting.
Section 5 of the Fourteenth Amendment provides that Congress ―shall have power to enforce, by
appropriate legislation, the provisions‖ of that Amendment—including, of course, the
Amendment‘s Equal Protection and Due Process Clauses. In Katzenbach v. Morgan, we decided
that Congress could, under this provision, forbid English literacy tests for Puerto Rican voters in
New York State who met certain educational criteria. Though those tests were not themselves in
violation of the Fourteenth Amendment, we held that § 5 authorizes prophylactic legislation—
that is, legislation that proscribes facially constitutional conduct, when Congress determines such
proscription is desirable to make the amendments fully effective. We said that the measure of
what constitutes ‗appropriate legislation‘ under § 5 of the Fourteenth Amendment is the flexible
―necessary and proper‖ standard of M’Culloch v. Maryland. We described § 5 as ―a positive
grant of legislative power authorizing Congress to exercise its discretion in determining whether
and what legislation is needed to secure the guarantees of the Fourteenth Amendment.‖ Morgan.
… In City of Boerne, we confronted Congress‘s inevitable expansion of the Fourteenth
Amendment, as interpreted in Morgan, beyond the field of racial discrimination. There Congress
had sought, in the Religious Freedom Restoration Act, to impose upon the States an
interpretation of the First Amendment‘s Free Exercise Clause that this Court had explicitly
rejected. To avoid placing in congressional hands effective power to rewrite the Bill of Rights
through the medium of § 5, we formulated the ―congruence and proportionality‖ test for
determining what legislation is ―appropriate.‖ When Congress enacts prophylactic legislation,
we said, there must be ―proportionality or congruence between the means adopted and the
legitimate end to be achieved.‖
I joined the Court‘s opinion in Boerne with some misgiving. I have generally rejected tests
based on such malleable standards as ―proportionality,‖ because they have a way of turning into
vehicles for the implementation of individual judges‘ policy preferences. Even so, I signed on to
the ―congruence and proportionality‖ test in Boerne, and adhered to it in later cases.
I yield to the lessons of experience. The ―congruence and proportionality‖ standard, like all such
flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking.
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Worse still, it casts this Court in the role of Congress‘s taskmaster. Under it, the courts (and
ultimately this Court) must regularly check Congress‘s homework to make sure that it has
identified sufficient constitutional violations to make its remedy congruent and proportional. As
a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into
constant conflict with a coequal branch of Government. And when conflict is unavoidable, we
should not come to do battle with the United States Congress armed only with a test
(―congruence and proportionality‖) that has no demonstrable basis in the text of the Constitution
and cannot objectively be shown to have been met or failed.…
I would replace ―congruence and proportionality‖ with another test—one that provides a clear,
enforceable limitation supported by the text of § 5. Section 5 grants Congress the power ―to
enforce, by appropriate legislation,‖ the other provisions of the Fourteenth Amendment. Morgan
notwithstanding, one does not, within any normal meaning of the term, ―enforce‖ a prohibition
by issuing a still broader prohibition directed to the same end. One does not, for example,
―enforce‖ a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour speed limit—even
though that is indeed directed to the same end of automotive safety and will undoubtedly result
in many fewer violations of the 55-mile-per-hour limit. And one does not ―enforce‖ the right of
access to the courts at issue in this case, by requiring that disabled persons be provided access to
all of the ―services, programs, or activities‖ furnished or conducted by the State. That is simply
not what the power to enforce means—or ever meant. The 1860 edition of Noah Webster‘s
American Dictionary of the English Language, current when the Fourteenth Amendment was
adopted, defined ―enforce‖ as: ―To put in execution; to cause to take effect; as, to enforce the
laws.‖ See also J. Worcester, Dictionary of the English Language 484 (1860) (―To put in force;
to cause to be applied or executed; as, ‗To enforce a law‘‖). Nothing in § 5 allows Congress to
go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or ―remedy‖
conduct that does not itself violate any provision of the Fourteenth Amendment. So-called
―prophylactic legislation‖ is reinforcement rather than enforcement.
Morgan asserted that this commonsense interpretation ―would confine the legislative power ... to
the insignificant role of abrogating only those state laws that the judicial branch was prepared to
adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing
the ‗majestic generalities‘ of § 1 of the Amendment.‖ That is not so. One must remember that in
1866 the lower federal courts had no general jurisdiction of cases alleging a deprivation of rights
secured by the Constitution. If, just after the Fourteenth Amendment was ratified, a State had
enacted a law imposing racially discriminatory literacy tests (different questions for different
races) a citizen prejudiced by such a test would have had no means of asserting his constitutional
right to be free of it. Section 5 authorizes Congress to create a cause of action through which the
citizen may vindicate his Fourteenth Amendment rights. … But what § 5 does not authorize is
so-called ―prophylactic‖ measures, prohibiting primary conduct that is itself not forbidden by the
Fourteenth Amendment.
The major impediment to the approach I have suggested is stare decisis. A lot of water has gone
under the bridge since Morgan, and many important and well-accepted measures, such as the
Voting Rights Act, assume the validity of Morgan and South Carolina v. Katzenbach. …
However, South Carolina and Morgan … involved congressional measures that were directed
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exclusively against, or were used in the particular case to remedy, racial discrimination. Giving
§ 5 more expansive scope with regard to measures directed against racial discrimination by the
States accords to practices that are distinctively violative of the principal purpose of the
Fourteenth Amendment a priority of attention that this Court envisioned from the beginning, and
that has repeatedly been reflected in our opinions. [E.g. The Slaughter-House Cases; Strauder v.
West Virginia.] In those early days, bear in mind, the guarantee of equal protection had not been
extended beyond race to sex, age, and the many other categories it now covers. Also still to be
developed were the incorporation doctrine (which holds that the Fourteenth Amendment
incorporates and applies against the States the Bill of Rights), and the doctrine of so-called
―substantive due process‖ (which holds that the Fourteenth Amendment‘s Due Process Clause
protects unenumerated liberties). Thus, the Fourteenth Amendment did not include the many
guarantees that it now provides. In such a seemingly limited context, it did not appear to be a
massive expansion of congressional power to interpret § 5 broadly. Broad interpretation was
particularly appropriate with regard to racial discrimination, since that was the principal evil
against which the Equal Protection Clause was directed, and the principal constitutional
prohibition that some of the States stubbornly ignored. The former is still true, and the latter
remained true at least as late as Morgan. …
Thus, principally for reasons of stare decisis, I shall henceforth apply the permissive McCulloch
standard to congressional measures designed to remedy racial discrimination by the States. I
would not, however, abandon the requirement that Congress may impose prophylactic § 5
legislation only upon those particular States in which there has been an identified history of
relevant constitutional violations. I would also adhere to the requirement that the prophylactic
remedy predicated upon such state violations must be directed against the States or state actors
rather than the public at large. See Morrison. And I would not, of course, permit any
congressional measures that violate other provisions of the Constitution. When those
requirements have been met, however, I shall leave it to Congress, under constraints no tighter
than those of the Necessary and Proper Clause, to decide what measures are appropriate under
§ 5 to prevent or remedy racial discrimination by the States.
I shall also not subject to ―congruence and proportionality‖ analysis congressional action under
§ 5 that is not directed to racial discrimination. Rather, I shall give full effect to that action when
it consists of ―enforcement‖ of the provisions of the Fourteenth Amendment, within the broad
but not unlimited meaning of that term I have described above. When it goes beyond
enforcement to prophylaxis, however, I shall consider it ultra vires. The present legislation is
plainly of the latter sort.
Requiring access for disabled persons to all public buildings cannot remotely be considered a
means of ―enforcing‖ the Fourteenth Amendment. The considerations of long accepted practice
and of policy that sanctioned such distortion of language where state racial discrimination is at
issue do not apply in this field of social policy far removed from the principal object of the Civil
War Amendments. … It is past time to draw a line limiting the uncontrolled spread of a wellintentioned textual distortion.
[The dissenting opinion of JUSTICE THOMAS is omitted.]
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