A lot has been said and written about the oral arguments before the Supreme Court concerning ObamaCare. Many have claimed you can’t base much on such arguments.
Perhaps. But it seems to me that you can get an indication of the mood of the court if you consider them carefully and keep them in context.
What I’ve surmised over the past few days is the law is in deep trouble. I think, if nothing else, the oral arguments pointed out how dismally weak and poor the arguments “for” this law are.
Of course, depending on how they would like to see the court rule, each side has found ways to spin these arguments to support their hoped for result. No huge surprise there.
But I think the one thing that is clear is the court is pretty well split down the middle and along ideological lines. And, as we’ve said for some time, in reality the result will hinge on the vote of Justice Kennedy.
However, I think you have to keep in mind that it won’t be a single ruling but one which entails several votes. One on the individual mandate, one on severability and possibly, depending on how the severability vote goes, if portions or the whole bill ought to be struck down. If the whole law is struck down, of course the expanded Medicare portion discussed yesterday will go with it.
That leaves you wondering where Kennedy is in his deliberation of the case. Again, if looking at indications to be gleaned from the oral arguments, one could assume he finds it true that the individual mandate would “fundamentally change” the citizen’s relationship with government – and not to the citizen’s favor. I think it is also true that he is not satisfied that the government has successfully articulated a “limiting principle” – a critical and key point in the discussion.
Finally, I get the impression, from yesterday’s arguments, that Kennedy is leaning toward “paving over” the whole law. In other words, giving Congress a “do over” since taking the mandate out would create a law and a consequence that it is hard to argue was Congress’s original intent. What is also interesting is the developing opinion that striking down the entire law would actually be an exercise in judicial restraint, not judicial activism.
Justice Ruth Bader Ginsburg said Mr. Clement is asking the Court to conduct "a wrecking operation," before stating that "the more conservative approach would be salvage rather than throwing out everything." The Obama Administration didn’t say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.
But Justice Anthony Kennedy doubted Justice Ginsburg’s logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress "did not provide for, did not consider." To wit, costs would soar without any mechanism to offset them.
"When you say judicial restraint," Justice Kennedy said, "you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite." Overturning the mandate alone, he continued, "can be argued at least to be a more extreme exercise of judicial power than to strike the whole."
This is a critical point.
I think it is clear the 4 justices traditionally identified with the liberal side of the court are fore-square for the law and will find some way to justify it’s egregious and unconstitutional over-reach. And yes, no secret, I’ve always considered the law to be that and nothing I’ve heard in oral arguments has changed that. I think Justices Thomas, Alito and Scalia are for finding the mandate unconstitutional and for killing the entire law. I think Chief Justice Roberts is against the mandate although I’m not sure it’s a foregone conclusion that he wants to kill the entire law at this point. However I think he’ll be persuaded eventually.
That would make Kennedy the guy … again. No surprise for most who’ve watched the court for the past few sessions. He often ends up as the swing guy. You may disagree with my assessment of where he is in his decision making process, but his questions and comments, at least to me, seemed to indicate he was forming a particular opinion and that opinion favored both striking down the mandate and then striking down the whole law.
Should that be the case, and given the Democrats are unlikely to have an unassailable majority in Congress anytime soon as they did when they passed this monstrosity, this is indeed “the most important case in 50 years”. That’s a “good thing” because the likelihood that a “replacement” will be passed in Congress becomes much less likely. Kennedy’s vote could save America as we know it and protect us from a law that would “fundamentally” change our relationship with government and place us in a position of involuntary servitude to a government given license to run our lives in pretty much any way it see’s fit to pursue.
One of the jokes that has gone around for some time concerning ObamaCare’s eventual hearing in the Supreme Court is it will likely revolve around what Justice Kennedy had for breakfast. The obvious point being most SCOTUS observers can pretty much predict how the other 8 Justices might rule, but Kennedy is sort of the wild card and swing vote.
So, as you might imagine, many eyes are on him.
Today was the 2nd day of oral arguments in the case. This question from Justice Kennedy may give an indication of how he’s leaning in the case:
JUSTICE KENNEDY: “Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
My answer to his question is “you bet”. How did the Solicitor General answer?
GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people’s participation in the health care market, and all — all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which — in which you — although most of the population is in the market most of the time — 83 percent visit a physician every year; 96 percent over a five-year period — so virtually everybody in society is in this market, and you’ve got to pay for the health care you get, the predominant way in which it’s — in which it’s paid for is insurance, and — and the Respondents agree that Congress could
require that you have insurance in order to get health care or forbid health care from being provided.
Uh, I don’t know about you, but it seems to me that the Solicitor General sidestepped the question and erected a giant strawman.
If you want to read the transcript of today’s oral arguments they’re here and they’re very interesting. If I had to guess, I’d say the law is in trouble. I found the arguments for to be fairly weak and I got the indication that most of the Justices (well, at least a majority of the Justices) may have as well.
Bottom line, Kennedy’s question is still laying out there unanswered.
UPDATE: More Justice Kennedy:
JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.
Indeed, it does.
I don’t know about you, but this seems such a clear thing to me. If law enforcement is going to put any sort of a tracking device on a citizen’s vehicle, they need to obtain a warrant first. See 4th Amendment:
The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.
Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”
“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”
“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.
“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
The government, in this case, had put a GPS device on the target’s vehicle without a warrant, monitored it for 28 days and then used that information at his trial (he was convicted on cocaine trafficking charges and given a life sentence).
The reason I think this should have been a no-brainer for LEOs is the fact that the SCOTUS decision was unanimous.
When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”
Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”
Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.
Ok, get a freaking warrant first.
What this decision does is uphold a Constitutional right that has been under assault for quite some times. The “envelope stretching” that is not uncommon as new technology offers new methods of surveillance and monitoring. The watchword for LEOs should be “when in doubt, get a warrant”. And live by the document you’ve sworn to uphold and defend.
ObamaCare, as mentioned in a previous post, gets its Constitutional review by the Supreme Court today. CATO’s Ilya Shapiro lays out the agenda:
This morning, as expected, the Supreme Court agreed to take up Obamacare. What was unexpected — and unprecedented in modern times — is that it set aside five-and-a-half hours for the argument. Here are the issues the Court will decide:
- Whether Congress has the power to enact the individual mandate. – 2 hours
- Whether the challenge to the individual mandate is barred by the Anti-Injunction Act. – 1 hour
- Whether and to what extent the individual mandate, if unconstitutional, is severable from the rest of the Act. – 90 minutes
- Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour
Those are critical questions. They tend to define in four points, how threatened our rights are by this awful legislation. Forget what it is about, consider to what level it intrudes and what, if found Constitutional, it portends.
If found Constitutional, you can take the actual Constitution, the one that no fair reading gives an inkling of support to such nonsense as ObamaCare, and cut it up for toilet paper. It will be, officially, dead.
A decision that supports those 4 points (or even some of them) means the end of federalism and the final establishment of an all powerful national government which can (and will) run your life just about any way it wishes. If it has the power to enact a mandate such as that called for in ObamaCare, it can mandate just about anything it wishes. And, if the new conditions on all federal Medicaid funding stand, the states have no grounds to resist or refuse other federal intrusion.
In any event, the Supreme Court has now set the stage for the most significant case since Roe v. Wade. Indeed, this litigation implicates the future of the Republic as Roe never did. On both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure — federalism and enumeration of powers — is judicially enforceable or whether Congress is the sole judge of its own authority. In other words, do we have a government of laws or men?
If you’re devoted to freedom and liberty and opposed to intrusive and coercive government, you know how you want this to come out.
And it isn’t to the advantage of ObamaCare.
In a decision today, the Supreme Court basically upheld the portion of the Arizona state law that sanctions employers who hire illegal immigrants:
The 5-3 decision upholds the Legal Arizona Workers Act of 2007 and its so-called business death penalty for employers who are caught repeatedly hiring illegal immigrants. The state law also requires employers to check the federal E-Verify system before hiring new workers, a provision that was also upheld Thursday.
Thursday’s decision is a defeat for the U.S. Chamber of Commerce, several civil-rights groups and the Obama administration, all of whom opposed the Arizona law and its sanctions on employers. They argued that federal law said states may not impose "civil or criminal sanctions" on employers.
This ruling boosts state’s arguments that they have at least some rights in terms of controlling illegal immigration (particularly when the federal government refuses to act). The three dissenters disagreed:
In dissent were Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. They said federal law prohibited states from imposing their own immigration-related rules on employers. Justice Elena Kagan sat out the case.
Of course federal law prohibits, or tries to prohibit such rules by states, but the court just changed that, didn’t they? It gives states back some of their rights and reduces the power of the federal government in an area where I think it’s power needed to be reduced, particularly since it appears the problem is out of control with the fed in charge.
I have mixed feelings about the so-called “death penalty” for businesses. I assume, or at least hope that there are appeals, etc. before it is finally imposed because such a penalty effects more than just the business owners in many cases.
By ruling that the states have the right to impose such a penalty though, illegal immigrants will find gaining employment much harder than it was before as there are few businesses who are going to figure that saving a little money hiring an illegal is worth the “death penalty” if caught.
Oh … and to save the drive by commenters the trouble – being against “illegal immigration”, note the term emphasized, does not mean one is against “immigration”, thankyouverymuch.
It must be getting uncomfortable legally for supporters of ObamaCare. They’re calling out the big guns. Today, we hear from Lawrence Tribe who attempts the usual arguments, but then spends a lot of time praising the justices of the Supreme Court (well, except Thomas, of course). There’s a reason for that as we’ll see.
Tribe first attempts to argue that the commerce clause is indeed applicable:
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
Of course that’s not the argument. Few would argue, given precedent, that Congress does indeed have the power to regulate the insurance industry. They may find it to be a stretch and most likely not how the Founders envisioned the regulatory powers of Congress being used, but few can deny that’s the legal state of affairs today. But:
Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.
Note the emphasis – “the system” won’t work unless “all individuals” participate “to the extent of their economic ability”. So it’s not about the sick, it’s about system viability. A “system” which doesn’t yet exist takes precedence, because supporters want it, over the individual right to say “uh, no thanks”.
It also ignores those who presently pay their way. Yes, folks, there are some out there. And no, Tribe isn’t about to let them off the hook because they’re on the end of the economic spectrum where they’ll be paying full price for insurance and then some.
Back to the point – his argument is for the “system.” The “system”, imposed by Congress, must abrogate the individual’s right to make an economic choice based on his or her desires, needs or priorities because the system’s very existence depends on universal participation. That’s the tail wagging the dog. Our Constitutional system exists to protect individual rights and choices – not take them away. And this mandate is an abrogation of the “right to choose” (which the left only seems to want you to have when it comes to abortion) what economic activity an individual will participate in is dead.
In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.
In 1982, Social Security had been around for decades. ObamaCare hasn’t taken the first payment by mandate. And the fact that Social Security had existed for decades and millions had been forced to pay into it (but had yet to recoup their payments) may have influenced the Court to find keeping Social Security. That’s not the case for ObamaCare. Tribe’s is an empty argument. There’s another difference. Personally, I think that Social Security is as unconstitutional as the ObamaCare mandate – but it is a fee taken in the form of taxation (even if it does end up being a mandated program). And that brings us to the core of the matter concerning ObamaCare:
Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.
It possibly could – but then the law would most likely have to be rewritten to reflect that, and there’s a slim to none chance of that happening with a Republican House. In fact, this is the path the last Congress should have taken vs. an individual mandate. I don’t care how hard lawyers like Tribe argue that it is Constitutional, it doesn’t pass the Constitutional smell test. Congress is given the power to regulate the activity of interstate business actors. Opting not to buy something does not make you a part of that, no matter how badly supporters want that to be true. A decision not to buy is an individual choice that government has no business – and until this point – no right or power to compel one to change.
The danger here, of course, is given the precedent of Medicare and Social Security, I fear a tax would pass Constitutional muster, given the expansion of powers SCOTUS has granted Congress since FDR.
Tribe outlines his arguments as if they’re open and shut. They’re not – in fact, to a layman they appear pretty darn weak (well other than the tax, which hasn’t a chance, at least at the moment, of passing). The indication that they weak comes from the rest of the article where he appeals to the integrity and consistency of the justices and his appeal to do the right thing and find this all Constitutional. Tribe’s entire argument, and that of supporters, is individuals, at some point in their lives, must use the health care system. Therefore, they must make a “commercial decision” about how to pay for it. It is that decision that Tribe says constitutes the basis for Congress to assume the power to dictate how they’ll pay. It is nonsense on a stick (and it doesn’t take a very bright person to see the future implications of such a finding).
In fact, Allahpundit of Hot Air sees this op/ed for what it really is. It certainly isn’t about the pedestrian legal arguments, as they’re the same ones many on the left have been making since ObamaCare was challenged and found unconstitutional. It is in fact an op/ed to set up a narrative if the court should not find in favor of the ObamaCare law. Tribe spends the entire 2nd half of his op/ed praising the justices and calling on them to do their constitutional duty and dispel the rumor that they’re “political” animals. This, says Allahpundit, is why Tribe wrote the piece:
His goal here isn’t to persuade Times readers that he’s correct on the legal merits; his goal is to persuade Times readers that if the Supreme Court disagrees with him, it is, must, and can only be because they’re right-wing hacks with no regard for the Constitution or for precedent. It’s transparent narrative-building for liberal bien-peasants, a way of moving the Overton window so that any unfavorable ruling, notwithstanding the legal novelty of the mandate or the reasoning of the majority opinion, must be illegitimate. Which is to say, it’s a nakedly political argument dressed up as a plea to keep politics out of law.
Exactly … pretty transparent for a Harvard Law professor whose hubris is such that he sees himself smarter than just about anyone else. Here he comes across as a political hack and water carrier for the administration. It also tells me that the administration, even with their public pronouncements of faith that the challenges will fail, think they’re in trouble.
I’m not a lawyer nor do I pretend to be, although I do enjoy discussing legal matters very much.
Anyway, as you might imagine, Judge Vinson’s ruling has created a bit of a stir with the left, of course, accusing him of “extreme activism” and the right saying “right on”. In reality, all it means is the future of the law depends on what Justice Kennedy is feeling like when the SCOTUS hears it because they are going to have to review it now.
So, back to me not being a lawyer, I’d like to turn to someone who is and who has followed this closely and, in fact, wrote amicus briefs for two of the governors involved in the lawsuits – Hans Bader who is a senior attorney with the Competitive Enterprise Institute. Here’s his opinion of the ruling:
A judge in Florida just declared the health care law known as “Obamacare” unconstitutional, ruling it void in its entirety. Judge Vinson rightly declared the health care law’s individual mandate unconstitutional, since the inactivity of not buying health insurance is not an “economic activity” that Congress has the power to regulate under the Interstate Commerce Clause. (Under the Supreme Court’s decision in United States v. Morrison (2000), which I helped litigate, only “economic activity” can be regulated under the Commerce Clause, with the possible exception of those non-economic activities that harm instrumentalities of interstate commerce or cross state lines.)
Judge Vinson also rightly declared the law as a whole unconstitutional. The health care law lacks a severability clause. So if a major provision like the individual mandate is unconstitutional — as it indeed was — then the whole law must be struck down.
The absence of a severability clause meant that, at a minimum, the burden of proof shifted to the government to prove (among other things) that the law would have passed even without the individual-mandate provision that the court has just ruled unconstitutional. The government could not, and did not, meet that burden of proof, given the incredibly narrow margin by which the health care law passed in the House, and the fact that it circumvented a filibuster with no votes to spare in the Senate.
As I noted earlier in The Washington Examiner, “To justify preserving the rest of the law, the judge” in the earlier Virginia case “cited a 2010 Supreme Court ruling [Free Enterprise Fund v. PCAOB] that invalidated part of a law — but kept the rest of it in force. But that case involved a law passed almost unanimously by Congress, which would have passed it even without the challenged provision. Obamacare is totally different. It was barely passed by a divided Congress, but only as a package. Supporters admitted that the unconstitutional part of it — the insurance mandate — was the law’s heart. Obamacare’s legion of special-interest giveaways that are ‘extraneous to health care’ does not alter that.” In short, Obamacare’s individual mandate is not “volitionally severable,” as case law requires.
The individual mandate provision also was not “functionally” severable from the rest of the law, since the very Congress that passed deemed it absolutely “essential” to the Act’s overarching goals (as Judge Vinson in Florida correctly noted).
(In our amicus brief in the Florida case for Governors Tim Pawlenty and Donald L. Carcieri, we also argue that Obamacare violates the Tenth Amendment by exceeding Congress’s power under the Spending Clause, a so-called Pennhurst argument.)
In footnote 27, the judge cited with approval the thoughtful brief of legal scholar Ken Klukowski explaining why Obamacare should be struck down in its entirety under settled principles of severability.
So there it is with all the links. I’m hoping that’s how the SCOTUS sees it as well. So for the lawyers among us – have at it guys.
Apparently that depends on how Justice Kennedy decides. Of the 8 justices on the case (Kagen recused herself) he appears to be the only one whose final stance is unknown. As Lyle Denniston at SCOTUS blog says:
Were Kennedy to vote to uphold the law, despite apparent reservations, the result probably would be a 5-3 win for Arizona. But if he voted to strike down the law, there seemed likely to be only three other votes to go with his, making the vote 4-4 — but Arizona still would win, because such a split vote would summarily affirm a Ninth Circuit Court decision that upheld the state’s worker control law.
However, as he further notes, a split would only apply to that particular case and not more broadly. It would also indicate the probability of any cases that follow it would most likely fail:
Evenly divided results, however, do not set a precedent beyond the individual case, so the result in the future, if all nine Justices took part, might well come out differently: Justice Kagan’s vote could be the swing vote. And other test cases are on the way — including one involving an even broader Arizona anti-immigration law, and a set of alien restrictions adopted by the local government in Hazleton, Pa.
So stay tuned. Worst case for AZ is it gets part of the law affirmed if there’s a split. However it would also mean that the ability for states to address immigration problems would most likely be dead. Supporters have got to hope Kennedy comes down on the side of the right of a state to address the problem that the Federal Government seems unwilling and/or unable to address.
Having made it up as they go, the Obama administration is now arguing that the mandate to buy insurance coverage under Obamacare is a perfectly legal tax.
That, of course, after the President denied it was a tax in order to sell it:
“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”
When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”
You can tell he was a constitutional expert when he taught, can’t you?
So much so that the Department of Justice, in a brief defending the law, claims it to be a "valid exercise of the Congressional power to impose taxes:
Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.
Except Congress doesn’t argue that at all. Instead it relies on the Commerce Clause as its justification for the mandate:
Congress anticipated a constitutional challenge to the individual mandate. Accordingly, the law includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority.
And then, per the White House, if any additional authority is needed – other than the power to define and then levy taxes (Congress) or the commerce clause, why just consult the General Welfare Clause. They have more Constitutional ways to make you buy something you may not want than you can imagine:
“The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law,” Mr. Pfeiffer said. “To the extent that there is any question of additional authority — and we don’t believe there is — it would be available through the General Welfare Clause.”
One has to assume they just plan on overwhelming the Court with as many “viable alternatives” as it takes to get their way.
One Yale professor says the tax argument – the one Mr. Obama denied – is the strongest argument:
Jack M. Balkin, a professor at Yale Law School who supports the new law, said, “The tax argument is the strongest argument for upholding” the individual-coverage requirement.
Mr. Obama “has not been honest with the American people about the nature of this bill,” Mr. Balkin said last month at a meeting of the American Constitution Society, a progressive legal organization. “This bill is a tax. Because it’s a tax, it’s completely constitutional.”
Smoke, mirrors, deceit and debt. That’s what you get for trusting a snake-oil salesman with your health care. Oh and this:
“This is the first time that Congress has ever ordered Americans to use their own money to purchase a particular good or service,” said Senator Orrin G. Hatch, Republican of Utah.
If this survives the court challenge, it won’t be the last – trust me on that.
The irony, of course, is the Constitution was written to limit government and keep it off our back. Instead it is now being used to expand government and intrude more and more deeply in our lives.
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.