The Supreme Court may not be so anxious to rein in Congress’ broad power to pass regulatory laws under the Constitution’s commerce clause, the key point of dispute in the pending court battles over President Obama’s health insurance law.

By a 7-2 vote, the justices turned down a constitutional challenge to a 2002 law that makes it a federal crime for a felon to have body armor or a bulletproof vest.

The majority’s decision, rendered without comment, could make it more difficult for those challenging health insurance reform to win court orders overturning parts of the new law.

“The federal power claimed is the authority to regulate anything — from the possession of French fries to the local theft of a Hershey’s Kiss,” argued lawyers for Cedrick Alderman, a Seattle man who appealed the body-armor law.


Attorneys general from more than 20 states have joined lawsuits arguing that the healthcare law goes beyond Congress’ power because it requires Americans by 2014 to have some health insurance or pay a tax penalty.

Two district judges have rejected such challenges, and one in Virginia has ruled the law unconstitutional. The issue is likely to reach the Supreme Court in a year or two.

Alderman’s appeal concerned only whether Congress had the power to enact a law regulating the possession of a product — in this instance, body armor. The law came in response to several shootouts involving police, including a bank robbery in North Hollywood in which the robbers wore body armor.

The appeal argued that the possession of a bulletproof vest had nothing to do with interstate commerce and, therefore, was beyond Congress’ power.


But the lower courts had upheld the law. The Supreme Court considered the appeal over several monthsbut rejected it Monday in Alderman vs. United States.

The denial was met by a sharp dissent from Justices Clarence Thomas and Antonin Scalia, the court’s two foremost proponents of limiting Congress’ regulatory power.

“Today, the court tacitly accepts the nullification of our recent Commerce Clause jurisprudence,” wrote Thomas in a seven-page dissent.

The court’s failure to act “threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the states,” he said.


Thomas referred to a pair of decisions, beginning in 1995, in which the court’s conservatives, led by Chief Justice William H. Rehnquist, sought to put clearer limits on Congress’ power.

They struck down federal laws that made it a crime to have a gun near a school and another that gave victims of sexual assaults a right to sue in federal court. Neither matter involved commerce and economic activity, Rehnquist said. These decisions are cited regularly in the pending suits against the healthcare law.

But since Chief Justice John G. Roberts Jr. arrived in 2005, the court has not moved to restrain federal power.

Last year, in a key test of federal power, the justices said U.S. officials had the constitutional authority to hold sex criminals in prison after they had served their terms. A lower court had said this law exceeded Congress’ power, but the justices upheld it in a 7-2 decision in United States vs. Comstock, with dissents by Thomas and Scalia.


Interest in the disputes has grown over the last year as many conservatives and activists in the “tea party” movement were demanding more limits on the power of the federal government.

david.savage@latimes.com