President Obama has said he plans to announce his nomination to the Supreme Court after Justice John Paul Stevens’ planned retirement this summer. As Capitol Hill prepares for a confirmation debate and experts try to anticipate whom the president might choose, the issue of health care reform could play a role in the coming debate.
According to Dave Roland, a policy analyst and attorney at the Show-Me Institute, a Missouri think tank, the Supreme Court nominee will likely be asked about the constitutionality of the recently passed health care overhaul.
“The issue of congressional power under the Commerce Clause will arise in the hearings, and clearly will tie into Obamacare,” Roland said. “This is a huge line of legal demarcation between liberals and conservatives. Liberals think there are no limits to congressional power under the Commerce Clause. That won’t play well if conservatives point out the ramifications of that view.”
Commerce Clause at Issue
Roland points out the health care law depends on the federal government’s power under the Commerce Clause, and that before the federal health care bill was passed, never before had the federal government required citizens to purchase a commercial product.
Yet this is not likely to prevent a nomination from moving forward, he says.
“While Republicans will clearly raise questions about a nominee’s interpretation of the Commerce Clause, I doubt that the confirmation hearings will be dominated by this question,” Roland said. “Not only is Obama unlikely to appoint a justice with a restrictive interpretation of that clause, the Democrats have such a large majority in the Senate that it would be nearly impossible to confirm a justice who clearly indicated a willingness to limit Congress’s powers in that regard.”
Questions About Obamacare
According to Clint Bolick, director of the Center for Constitutional Litigation at the Arizona-based Goldwater Institute, questioners will approach the topic indirectly, by focusing on past decisions of the Court.
“A nominee will not comment on the issue as it pertains to a specific enactment like Obamacare. But views on past decisions are fair game and a juicy topic,” Bolick said. “If the nominee declines to answer, that will be a problem. And if he or she answers truthfully, that will be a problem too.”
Significant Change Unlikely
Given that there are few precedents to ask about in the case of Obamacare, Roland says other issues will factor in the nomination.
“Republicans will likely focus on issues in which Justice Stevens’ replacement might depart from the positions taken by their predecessor,” Roland said. “Stevens’ retirement is very unlikely to change the outcome at the Supreme Court. He was a very reliable vote in favor of governmental authority, except in matters of criminal procedure.
“No justice that would replace him is likely to be worse on this particular issue—and they might end up being better,” he added.
Sarah McIntosh ([email protected]) teaches constitutional law and American politics at Wichita State University in Kansas.
