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Dissent on Commerce power (UPDATED to 1:20 p.m.)

Final updates posted 1:20 p.m.

 Two Justices of the Supreme Court, in a dissent that may reveal a new division in the Court over Congress’s power to pass legislation under the Commerce Clause, on Monday accused the Court majority of silently accepting “the nullification” of the Court’s recent rulings on that power — especially, the decision in 1995 in Lopez v. U.S. The Lopez precedent has been playing a major role in the spreading national constitutional debate over President Obama’s health care reform plan.   The dissent came as the Court refused to hear a Commerce Clause challenge to a federal law that made it a crime for a convicted felon to possess a bulletproof vest or other body armor that had traveled across state lines.

In a second significant action, the Court sent back to a federal appeals court an Indian tribal rights case that had been granted and was scheduled to be heard on Feb. 23 — Madison County, N.Y., et al., v. Oneida Indian Nation of New York (10-72).  The case involves the tribe’s claim of sovereign immunity to foreclosure on property because of unpaid taxes on Indian lands.  The tribe has recently changed its laws on that issue, and the Justices, in an unsigned opinion, told the Second Circuit Court to examine that change and its implications for the case.  The two sides disagree on the meaning of what the tribe has done.  (Justice Sonia Sotomayor, a former Second Circuit judge, took no part in that order.)Among a number of denials in new cases, the Court refused to hear a plea to halt enforcement of the new federal health care law, an attempt to bring a constitutional challenge to the U.S. invasion of Iraq in 2003, and a new attempt to challenge the constitutionality of non-unanimous jury verdicts in state criminal trials.

The Court issued its orders at the opening of Monday’s public session, then heard oral argument in one case before taking a brief break at 11 a.m. to join in the national moment of silence in tribute to the victims of the Arizona shootings.  The Court then heard the oral argument in the second case of the day.  (As the Court took the bench a few minutes before the usual starting time of 10 a.m., Chief Justice John G. Roberts, Jr., made a brief statement about the Arizona incident, and announced the moment-of-silence observance.)

Perhaps the most significant development noted on the Court’s orders list was the dissent by Justice Clarence Thomas, joined in all important respects by Justice Antonin Scalia.   They objected as the Court refused to hear the case of Alderman v. U.S. (09-1555), a challenge to a 2002 law passed by Congress.  After two highly publicized incidents in 1997 of local police officers being killed in an exchange of gunfire with assailants wearing body armor, the lawmakers enacted the James Guelff and Chris McCurley Body Armor Act.  That made it a crime for anyone to buy, own or possess body armor if that person had been convicted of a violent felony crime under either federal or state law.

The Ninth Circuit Court had rejected a challenge by a Seattle man, Cedrick B. Alderman, who had been convicted of having a bulletproof vest as a felon convicted of a prior violent crime.  Alderman had argued that Congress’s powers under the Commerce Clause are limited to those where there is a direct link or a direct effect on interstate commerce, as spelled out in a series of modern Supreme Court rulings on federalism — especially the Lopez decision in 1995, U.S. v. Morrison in 2000 and Gonzales v. Raich in 2005.

In rejecting the challenge, the Ninth Circuit, Justice Thomas noted in dissent from denial of review, had ruled that the Supreme Court’s 1977 decision in Scarborough v. U.S. had carved out a place within Congress’s authority to pass laws like the body armor ban.   “That logic threatens,” Thomas wrote, “the proper limits of Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the states.”

The dissenters said it was “difficult to imagine a better case” for Supreme Court review than Alderman’s petition.  “Scarborough, as the lower courts have read it, cannot be reconciled with Lopez because it reduces the constitutional analysis to the mere identification of a jurisdictional hook” like the one that the Court had interpreted in the Scarborough case — a law criminalizing a felon’s possession of a gun that affected commerce.  The Scarborough decision, Thomas wrote, did not involve a constitutional challenge, and yet the lower courts have read it as displacing some of the Court’s constitutional rulings on Commerce Clause challenges.

Because the scope of Congress’s Commerce Clause authority is very much at issue in the ongoing litigation over the new federal health care law, any indication of the current Justices’ view on that question attracts significant attention — even in cases where the law was not directly at issue (it was not even mentioned in the Alderman case).

The Court on Monday did take an action — but not one of great consequence — on the new health law.  It refused to hear a petition by nine doctors, a medical student, and an economist, each of whom complained in a lawsuit in federal court that the practice of medicine will forever be damaged if the new law is continued in effect and is enforced.  The petition was Anderson, et al., v. Obama (10-612).

The lawsuit did not contend that the law was beyond Congress’s powers.  Rather, it argued that both President Obama and the Senate had abused their constitutional powers during passage of the legislation late last year and earlier this year.  They asserted that the President violated the doctrine of separation of powers by strong-arming a reluctant U.S. Senator to get him to support the measure, and that the Senate had violated the House’s constitutional right to be the first to initiate a revenue measure.   A federal judge rejected the lawsuit on procedural grounds, and the Fourth Circuit Court upheld that outcome.   The Justice Department opted not to file a response to the petition; ordinarily, when that happens, the Court simply denies review, as it did in this case.

The Court also routinely denied another case in which the Justice Department had declined to respond — the case of New Jersey Peace Action, et al., v. Obama (10-609).  That involved an attempt to challenge the constitutionality of President George W. Bush’s decision in 2003 to launch a war in Iraq without a formal declaration of war by Congress.   The petition noted that the Supreme Court has repeatedly refused to consider cases raising that core constitutional question, but argued that it was now time to do so.  The challenge was filed in New Jersey federal court by a peace advocacy organization, by two mothers of service members who had served in Iraq, and by a former Army sergeant who had served there.   A federal District judge dismissed the case for lack of “standing,” and the Third Circuit Court agreed.

For the fourth time in recent years, the Court refused to decide whether the Constitution requires that jury verdicts in criminal trials in state and local courts must be by a unanimous vote.  Only two states still permit non-unanimous guilty verdicts in some cases — Oregon and Louisiana.  The Court has now denied review of petitions from both of those states.  Monday’s denial came in the case of Herrera v. Oregon (10-344).  The petitions in the cases seek to have the Court reconsider its splintered decision in 1972 in Apodaca v. Oregon that the Sixth Amendment jury trial right does not guarantee — in state and local trials — the right to have a verdict of guilt only by unanimous vote.

The Court denied review, at the suggestion of the U.S. Solicitor General, of a new case seeking clarification of the kind of proof that prison officials must offer in order to justify a rule that puts a burden on the practice of religion by inmates under the federal Religious Land Use and Institutionalized Persons Act.  The Court had sought the federal government’s views on a case (Thunderhorse v. Pierce, et al., 09-1353) involving a Texas inmate, Iron Thunderhorse, a Native American who has contended that a prison rule requiring inmates to keep their hair trimmed interferes with his religious practices.

In a second case involving that same federal law, the Court refused to hear a plea by the local governing board in Boulder County, Colo., that the Tenth Circuit Court  has interpreted Congress’s command not to discriminate against religious organizations in land-use cases to mean that officials must actually favor such organizations over others.   The dispute arose over local officials’ denial of an application by the Rocky Mountain Christian Church, a large congregation, to expand its school facilities in the small Boulder County area known as Niwot.  Federal courts overturned the denial. The petition was Boulder County Board v. Rocky Mountain Christian Church, et al. (10-521).

Recommended Citation: Lyle Denniston, Dissent on Commerce power (UPDATED to 1:20 p.m.), SCOTUSblog (Jan. 10, 2011, 10:18 AM),