Instructions: The year is 1936. As part of his New Deal series of economic reforms, President Franklin D. Roosevelt signed into law the Health Security Act of 1934. You are a law clerk for the conservative Justice James McReynolds, one of the so-called “Four Horsemen” who routinely find the President’s expansions of federal power unconstitutional. A case challenging the constitutionality of the Health Security Act was recently argued before the Supreme Court. You have been assigned to write a memo of no more than 1,000 words to Justice McReynolds addressing five specific issues regarding the constitutionality of the Health Security Act.

—

The Health Security Act (“HSA”) of 1934 has the stated purpose of ensuring that all Americans have access to affordable health insurance. The HSA has four key provisions:

Section 1 – “Requirement to maintain minimum essential coverage”

After January 1, 1937, a person over the age of 18 shall ensure that he has a qualified health insurance plan. The Labor Department shall publish a rule defining what constitutes a qualified health insurance plan.

Section 2 – “Shared responsibility payment”

If a person fails to maintain a qualified health insurance plan, then there is hereby imposed on the person a penalty of $1 a month. The penalty shall be paid to the Internal Revenue Service with the person’s annual tax return.

Section 3 – “State Exchanges”

All states are required to establish an “exchange” to allow people to purchase health insurance. The state-run exchanges are required to open offices in each state capital, and in all cities with more than 100,000 residents. The states are required to staff these offices with trained and qualified “navigators” who can assist people signing up for health insurance plans.

Section 4 – “Agricultural Readjustment Act”

Congress makes a finding that broccoli is the most healthful vegetable, and seeks to stimulate its production and consumption. All public and private schools are required to teach students that they should eat broccoli daily. Further, all children under the age of 18 in public and private schools are required to eat one serving of broccoli for lunch every day school is in session. For every day the child refuses, the child’s parents shall be required to purchase one serving of broccoli.

Minutes after President Roosevelt signed the Health Security Act into law, three lawsuits were filed in federal district court:

1. The first lawsuit, filed by the “Liberty League,” a private group opposed to the New Deal, challenged the constitutionality of sections 1 and 2 of the HSA, alleging that Congress lacks the power to enact the HSA under the Commerce Clause, the Necessary and Proper Clause, and the Taxing Power.

2. Roscoe Filburn, an Ohio farmer, and his 13-year old son, Frankie Filburn, file suit, challenging section 4 of the HSA. Both insist that they hate broccoli, and don’t want to eat or buy it. Filburn also claims that by sending his son to a private school, he does not want his son to learn about the horrors of broccoli. They both assert that Section 4 violates the Due Process Clause of the Fifth Amendment. They do not raise any claims under any other constitutional provision.

3. The Attorney General of Texas files a suit challenging section 3 of the HSA, alleging that by forcing Texas to open the exchanges, and hire the navigators, the HSA intrudes on Texas’s sovereignty, and violates the Tenth Amendment and principles of federalism. .

The challenges are all rejected in the lower courts, and are appealed to the Supreme Court.

Shortly after the case is argued before the Supreme Court, in a fireside chat President Roosevelt announces his “Court Packing” plan. He proposes a new law that would allow him to appoint a new Justice to the Supreme Court for every Justice over the age of 70. That would give Roosevelt the opportunity to appoint five new Justices of his own choice, and shift the balance of the Court. The law is virtually assured of passing in Congress.

Justice Owen Roberts,who had in the past found the President’s programs unconstitutional, confided in his colleagues that though he agreed with the HSA was unconstitutional in his entirety, he was considering changing his vote to uphold the HSA to avert a clash between the Court and the President that could impact the Court’s legitimacy. Justice Roberts is “wavering” about whether or not he will uphold the President’s signature piece of legislation.

—

Justice McReynolds was assigned to write the majority opinion on behalf of his fellow Horsemen, Pierce Butler, George Sutherland, and Willis Van Devanter, and the swing vote, Justice Owen G. Roberts. Justice McReynolds has asked you to write a bench memo that addresses the five issues noted below. Though you have a feeling how Justice McReynolds wants to vote, you have an independent mind, and are assigned to write a memo based on the constitutionality of the HSA under existing precedents in 1936. In other words, offer an objective assessment of the case law. Because McReynolds is a jerk, he imposes a strict word limit–the entire memo can be no more than 1,000 words. Because each of the five issues has an equal value, allocate your word count appropriately.

1. Address whether Congress has the power to enact Sections 1 and 2 of HSA under the Commerce Clause and the Necessary and Proper Clause of Article I, Section 8.

2. Address whether Congress has the power to enact Sections 1 and 2 of HSA under the the Taxing Power of Article I, Section 8.

3. Address whether Sections 4 of HSA violate the Due Process Clause of the Fifth Amendment.

4. Address whether Section 3 of HSA violates the the Tenth Amendment, and the principles of federalism in our Constitution.

5. Prepare a note that Justice McReynolds can send to Justice Roberts, explaining why he should not change his vote. Pay special attention to the separation of powers, the legitimacy of the Supreme Court, principles stare decisis, and how the Court will be perceived if he does, or does not switch in vote in response to Roosevelt’s proposal.