Commentary Magazine


Is Justice Breyer a Swing Vote?

Solicitor General Donald Verrilli was criticized by Obamacare supporters for failing, during his oral argument, to articulate a “limiting principle” on congressional power under the Commerce Clause — because he must have known the justices would ask for one. But Elena Kagan couldn’t answer the question two years ago; prominent Harvard and Georgetown professors couldn’t answer it a year ago; last year, the government conceded the lack of a limiting principle. The problem is a little deeper than Verrilli’s presentation.

The point was demonstrated again in the colloquy Justice Breyer had with Michael A. Carvin. Carvin noted that if Congress exceeded its power under the Commerce Clause, the law “doesn’t somehow become redeemed because it has beneficial policy effects in the health care market.” That would mean Congress could compel everyone to buy anything if Congress thought it beneficial, since “every compelled purchase promotes commerce.” Justice Kagan started to ask a question, but Breyer initiated a long colloquy with Carvin (Transcript, pp. 85-90), which ended as follows:

JUSTICE BREYER: … then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?

MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers –

JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question. [Emphasis added].

JUSTICE KAGAN: I’ve forgotten my question. (Laughter).

MR. CARVIN: I — I was facing the same dilemma, Justice Kagan.

Since Justice Breyer saw the point, it would be nice to think of him as a swing vote, possibly adding his vote to a landmark opinion upholding the fundamental constitutional principle of limited government.

But Breyer, as the leading proponent of a “living” Constitution, is unlikely to do that. The guiding principle for such proponents seems to be that the Constitution must contain — somehow, somewhere, maybe in a penumbra, maybe in provisions stretched beyond the framers’ intent — all the rights justices think individuals should have, and all the powers over individuals that justices decide the government needs. If necessary, “commerce” can simply be re-defined to mean, “being born.”

Breyer cut Carvin off as he started to suggest the framers would have rejected that view, and tried to hand the ball back to Kagan. But by then Kagan had forgotten her question, and Breyer had conclusively demonstrated that the problem with the government’s case was not Verrilli’s inability to articulate a limiting principle, but the fact there is no such principle to articulate. The “living” Constitution has you as soon as you are born.