The Commerce Clause and Executive Power: Exploring Nascent Individual Rights in National Federation of Independent Business v. Sebelius

Ronald Kahn

Commerce Clause cases are usually not viewed as cases directly involving individual rights, but are primarily interpreted as cases involving polity principles, such as state compared to national government power under concepts of federalism, or congressional versus presidential power under the separation of powers doctrine. Nevertheless, debates over polity principles informing the powers of government institutions raise important questions about individual rights. For example, in Immigration and Naturalization Service v. Chadha, Justice Powell, in concurrence, emphasized that the use of the legislative veto by the House to overturn a decision by the Immigration and Nationalization Service to allow Mr. Chadha to remain in the country is a denial of individual rights. When the legislative veto permitted Congress to deport Mr. Chadha, without applying general rules to his individual case or ensuring that the procedural safeguards found in courts and in quasi-judicial bodies in administrative agencies were used, individual rights were compromised.

My work to date has centered on the process through which individual rights have developed under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Explored to date is the question of why a conservative/moderate Supreme Court in the conservative political age since the 1990s has expanded implied fundamental rights to sexual intimacy for homosexuals and sustained the fundamental right of women to choose whether to have an abortion. One would expect the Supreme Court in the late twentieth and early twenty-first centuries to be conservative. Since 1969, when President Nixon named Warren Burger as Chief Justice, through 2005, when President George W. Bush appointed Chief Justice John Roberts to and nominated Samuel Alito for the Supreme Court, Republican presidents had made twelve of fourteen appointments to the Supreme Court, thus constituting a clear majority of appointees in any given year.