SCOTUS Sending A Signal On The Commerce Clause And ObamaCare?

The Supreme Court's refusal to take up the appeal of a far-reaching Commerce Clause case may indicate rough times ahead for challenges to ObamaCare

The Supreme Court’s decision not to accept an appeal in a case involving Commerce Clause issues may hold a clue to the ultimate fate of ObamaCare’s individual mandate:

In a case with potential implications for legal challenges to the Obama health-care reform law, the US Supreme Court on Monday refused to examine whether Congress overstepped its authority when it made it a federal crime for a convicted felon to possess a bullet-proof vest.

The key question in Alderman v. US was whether there are limits to Congress’s ability under the Constitution’s commerce clause to outlaw a local, intrastate activity like wearing body armor.

Legal challenges to the health-care reform act are asking the judiciary to enforce strict limits on Congress’s commerce clause power. At issue in those challenges is whether Congress has the power under the commerce clause to require every American to purchase a government-approved level of health insurance.

Had the high court taken up the Alderman case, it would have signaled a willingness by the justices to closely examine what limits, if any, apply to congressional power under the commerce clause.

The issue has been a contentious one at the Supreme Court since 1995 when the justices handed down their first decision in 50 years limiting the sweep of Congressional authority under the commerce clause. Analysts had been watching the Alderman case for a hint of which direction the justices might take on the broader commerce clause question – and perhaps on the health care case.

“Today, the court tacitly accepts the nullification of our recent commerce clause jurisprudence,” Justice Clarence Thomas wrote in an eight-page dissent joined by Antonin Scalia.

Thomas said the lower court decision in the Alderman case “could very well remove any limit on the commerce power.

Ilya Somin doesn’t think that this denial means much of anything for the challenges to the mandate:

What does the Supreme Court’s refusal to hear Alderman mean for future Commerce Clause cases, such as the current litigation over the Obama health care plan’s individual mandate? Probably not much. The Court refuses to take the vast majority of petitions for certiorari, including many that focus on important issues. So yesterday’s decision doesn’t necessarily mean that the majority of the justices agree with the Ninth Circuit. It’s possible, instead, that they plan to clarify the Court’s Commerce Clause jurisprudence in more detail once the individual mandate cases get to them, and don’t want to take any other Commerce clause cases until then. Or maybe they simply don’t want to address the Scarborough issue until there is a circuit split on the subject.

Even if the Court majority does someday some day endorse the Ninth Circuit’s logic, that still would not dispose of the mandate case. After all, the Ninth Circuit relied on the idea that the Commerce Clause gives Congress the power to ban possession of any good that has ever crossed state lines or been sold in interstate commerce. By contrast, the individual mandate regulates the condition of not having health insurance, which does not require the possession of any good — whether purchased in interstate commerce or not. Indeed, the mandate doesn’t regulate any activity of any kind.


That said, I do think that the Ninth Circuit’s approach is troubling for the reasons noted by Thomas. It doesn’t quite “remove any limit on the commerce power,” as he suggests. But it does interpret that power far more broadly than can possibly be justified by the text of the Constitution. Hopefully, the Court will overrule it in a future case.

Somin is correct that you cannot necessarily draw any conclusions about a ruling in a future case from the fact that the Court refused to accept an appeal in this one case on Monday. However, it’s worth noting that, under the Court’s rules, only four Justices need to be in agreement to accept an appeal and there apparently were only two Justices out of the nine who felt the appeal should be heard, presumably because they thought the decision below was likely wrongly decided. That doesn’t bode well for arguments that seek to limit the scope of the Commerce Clause.

Here’s the Scalia/Thomas dissent:

Alderman v. United States Dissent From Denial Of Certiorari

FILED UNDER: Healthcare Policy, Law and the Courts, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. progcivlib says:

    In the interest of intelligent discourse, can we stop referring to the health care legislation as ObamaCare?

  2. Jack says:

    Since Representative Nancy Pelosi had more to do with the final shape of the passed bill than President Obama, I’ve always felt if you’re going to use a name to politicize it, the health care legislation should have been called “Pelosicare”, but I agree with progcivlib above.

  3. floyd says:

    “In the interest of intelligent discourse”
    Your new here, aren’t ya?