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Unprecedented and Unbounded: The Wily Paul Clement

While reading my first-year Constitutional Law textbook, I noticed a line that made me pause mid-sip from a cup of coffee. I reread the line written by Chief Justice John Roberts, and I stopped, again.

No, can’t be.

The line comes from a 2007 case called United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Auth.  The question in that case was whether a “flow control” ordinance requiring trash haulers to deliver solid waste to a state-run processing facility was compatible with the Dormant Commerce Clause. After first explaining why it did not make constitutional sense to view laws favoring local government skeptically for DCC purposes, the Chief Justice wrote this line:

The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government.

Unprecedented and unbounded, Commerce Clause, interference with state government: Where have I read this before?

In the Affordable Care Act cases, attorney Paul D. Clement started his brief on the individual mandate with this introduction:

The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce.

Coincidence? Or did Mr. Clement specifically target the Chief?

The Chief Justice was one of two people that were widely thought to be in play on the individual mandate (the other being Justice Kennedy). People thought, and some still do, that when the Chief joined the majority opinion in United States v. Comstock (a 2010 case broadly construing the Necessary and Proper Clause) that it meant he would uphold the individual mandate (a view in doubt now after oral arguments). So it is quite possible that Mr. Clement wanted to echo the Chief’s words back to him.

But will uttering a phrase once in a brief really affect how the Chief perceives the case?

That probably depends if it was a one-time occurrence or a sustained effort. Ross Guberman, the Legal Writing Pro, dissected Mr. Clement’s brief and noted that Clement peppered it with references to unprecedented and unbounded:

“Unprecedented” appears 20 more times in the brief, and “unbounded” another 8 times. The related idea of “limit” or “limiting,” also introduced in the brief’s opening paragraph, resurfaces no fewer than 40 more times.

And Mr. Clement began oral argument with this statement:

The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.

Of course, it is conceivable that Mr. Clement has never read United Haulers and does not generally follow the Court’s Dormant Commerce Clause cases.

Or maybe not. While he worked at King & Spaulding, Mr. Clement wrote this white paper on why Maryland’s proposed energy legislation was unconstitutional on Dormant Commerce Clause grounds. The paper cites specifically to United Haulers.

The evidence is mounting.

I am taking a guess that either Mr. Clement has read United Haulers and those words just subconsciously came back to him when he wrote the brief, or, he remembered the Chief’s words and deliberately added them into his rhetorical arsenal. In either event, it was a brilliant move of advocacy.

No wonder this guy has seven arguments this term!

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Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

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