Free Markets, Free People

judicial activism


SCOTUS v. Obama – Mess with the bull, get the horn

And that may be exactly what will happen when, inevitably, much of the law and regulation pushed by the Obama administration and passed by the Democratic Congress are challenged in court – a poor tactical choice may come back to haunt the administration.

You probably remember the incident.  I remember remarking at the time that such a public embarrassment could come back to haunt Obama.  And that may end up being the case:

But the year’s most important moment may have come on the January evening when the justices gathered at the Capitol for President Obama’s State of the Union address.

They had no warning about what was coming.

Obama and his advisors had weighed how to respond to the court’s ruling the week before, which gave corporations the same free-spending rights as ordinary Americans. They saw the ruling as a rash, radical move to tilt the political system toward big business as they coped with the fallout from the Wall Street collapse.

Some advisors counseled caution, but the president opted to criticize the conservative justices in the uncomfortable spotlight of national television as Senate Democrats roared their approval.

Chief Justice John G. Roberts Jr. is still angered by what he saw as a highly partisan insult to the independent judiciary. The incident put a public spotlight on the deep divide between the Obama White House and the Roberts court, one that could have a profound effect in the years ahead.

A public challenging of the integrity and independence of the court was more than a rookie mistake. It was dumb politics.  It was an unforced error by Obama that may indeed have “profound effect” on the court’s rulings. 

The court may have had to sit there and take it at the time, but once back in their seat of power, it is they who are all powerful and can wreak havoc on the administration’s regulation regime and legislation.

That’s not to say the conservative side of the court will intentionally go after the administration’s agenda items – damn the law- but it may mean that they cut the administration no slack whatsoever and commit themselves to very strict interpretations of the Constitution that leave little latitude for meaningful legislative change to satisfy the court.

So what does that mean practically?  Take health care reform and the possible coming government arguments that the mandate to buy insurance is a) a tax or is b) covered by the interstate commerce clause.

Of course the court then has to decide on whether it is indeed a tax, if that tax is Constitutionally legal and whether Congress has the power to levy it.

Or, it will have to decide if such a mandate is indeed Constitutional under the commerce clause.

Given the incident during the State of the Union address, is there anyone who believes the administration’s arguments will be given the benefit of the doubt when it comes to a ruling on either question?  If, in fact, it could conceivably go either way, I think most believe the way it will go will be the way least favored by the administration at least on the conservative side of the house.

Of course you’ll hear charges of “judicial activism” if that happens, but I’d be more likely to find a more narrow definition of the commerce clause or Congress’s taxing power to be anything but activist in nature.

It’ll be interesting to watch this all unfold.  It’ll be a while before any of this reaches SCOTUS, but when it does, the fireworks generated will be much better than anything seen on the 4th of July.

~McQ

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