Supreme Court Considers Case on "Unprecedented" Assertion of Congressional Power

(Orin Kerr)

You're no doubt familiar with this Term's Supreme Court case involving a constitutional challenge to an "unprecedented" recent federal law. According to the challengers, the new statute exceeds Congress's Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.

According to the challengers, this unprecedented step simply goes to far and exceeds Congress's limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law. Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.

This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress's power. According to the Court's decision, Article I "empowers Congress to determine the . . . regimes that, overall, in that body's judgment, will serve the ends" of Article I's grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw. And the challenge was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. Two Justices dissented, one of which was Justice Alito. The majority opinion concluded:

[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.

The decision was Golan v. Holder, decided Wednesday.