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Supreme Court: Did it just hint at stance on a health-care law challenge?

The Supreme Court refused to take up a case examining Congress's authority under the commerce clause, a key issue in a legal challenge to Obama's health-care law. Two justices dissented.

By Staff writer / January 10, 2011

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.

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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.

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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.

'Nullification of our recent ... jurisprudence'

“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.”

It is impossible to know with any precision why most of the justices declined to hear a particular case.
But the fact that only two of the high court’s nine justices would agree to hear the commerce clause case may portend a Supreme Court retreat from what was once called the federalism revolution. Such a retreat would ensure smooth sailing ahead at the nation’s highest court for the health-care law.

The Supreme Court does not explain the results of its private conferences where the justices discuss and vote on future cases. The only public announcements are lists of cases that have been granted or dismissed, or dissents and concurrences issued by a justice.

“This court has consistently recognized that the Constitution imposes real limits on federal power,” Thomas wrote in his dissent.

But he added, “The Ninth Circuit’s interpretation [in the Alderman case] seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines.”

Thomas added: “Congress arguably could outlaw the theft of a Hershey’s kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled … to the store from Hershey, Pennsylvania.”

Can Congress criminalize vest possession?


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