Commentary Magazine


Topic: Commerce Clause

The Great Miscalculation of John Roberts

Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.

They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.

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Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.

They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.

Roberts had good reason to believe his decision to surrender to pressure from the Obama administration and reduce the Court’s power as a supposed equal branch would at least stop the assault on the Court. After all, he held up his end of the bargain. The New York Times waited all of two days to rough Roberts up some more:

The Court’s conservatism calls to mind the defiance of the Court in the 1930s when it regularly struck down New Deal statutes during the Great Depression. But there are important differences. The 1930s Court saw itself as preserving established precedents and principles. The Roberts majority does not have that conservative role. Nor does it play the role of the 1960s Court, whose rulings reinforced a relatively liberal trend in politics.

The current conservatives are not preserving a tradition or articulating a new social consensus. Instead, as the legal historian Robert W. Gordon put it, they have regularly been radical innovators, aggressively stepping into political issues to empower the Court itself.

Roberts extended an open hand to the administration and its allies only to find, as a favorite White House metaphor would have it, a clenched fist. But he shouldn’t have been surprised–nor should he be surprised to read the recent polling showing his Court to have lost some of the public’s respect. Apparently, bowing to pressure and issuing a ruling consistent neither with constitutional law nor public opinion won’t endear him to the people.

But Roberts’s ruling should have at least settled the tax issue. After all, the bill only survives because the mandate must be labeled a tax. When White House Chief of Staff Jack Lew made the Sunday morning talk show rounds, things sounded like they were heading in the right direction for Roberts’s authority. On “Fox News Sunday,” Lew said, “When the Supreme Court rules, we have a final answer.”

So the mandate is a tax, then? Not so fast. Lew meant the constitutionality of the law is settled. As for whether it’s a tax, according to Lew, the Court “said it didn’t matter what Congress called it. It was a penalty for 1 percent.” That is most certainly not what the Court said, but Lew was only repeating what the administration has been saying since the ruling. Press Secretary Jay Carney told reporters a day after the ruling that “You can call it what you want.” But didn’t Roberts call it a tax? Here Carney unleashes the chutzpah:

“With regard to the penalty as was discussed by Chief Justice Roberts in his opinion, for those who could afford health insurance but choose to remain uninsured — forcing the rest of us to pay for their care — a penalty is administered as part of the Affordable Care Act.”

Conservatives may find this maddening, but the worst part of the Carney story is how the reporter framed the debate. The White House, he wrote, “is aggressively fighting back against Republican claims that ObamaCare contains a tax increase.” (Italics are mine.) Far from settling the question, then, Roberts’s decision has rendered the Court’s opinion irrelevant. The debate about ObamaCare continues as if there were no Supreme Court ruling, only now there’s no judicial oversight waiting on the horizon. Roberts seems to have accomplished nothing with this ruling except diminishing the Court’s standing.

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Was Roberts’ Opinion Only an Essay?

As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

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As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

You can tell how the Court’s liberal bloc views Roberts’ Commerce Clause opinion by the way Justice Ginsburg describes it in the portion of her opinion that was joined by the three other liberal justices. She calls it the “Chief Justice’s Commerce Clause essay;” depicts it as his “puzzling” attempt “to hem in Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy;” and concludes that because he ultimately upholds the mandate as a tax, she sees “no reason to undertake a Commerce Clause analysis that is not outcome determinative.”

This is legal language indicating her view that the “puzzling” Commerce Clause opinion of the chief justice can be ignored, as it is not a holding of the Court. The Court’s leading liberal has served notice how the Court will treat the chief justice’s views on the Commerce Clause if a fifth liberal is ever appointed to the Court: as an essay, not a binding precedent.

Of course, if all that is necessary to sustain any federal mandate is to accompany it with a “shared responsibility payment” for those unwilling to abide by it, not only the chief justice’s essay but the entire Commerce Clause is irrelevant. In legalese, the Commerce Clause is “not outcome determinative.”

And under the portion of the Roberts opinion that does in fact speak for the Court, the new “shared responsibility payment” power of Congress is the law of the land. It is hard to think of a broader power than the one the chief justice established, speaking for a Court supposedly concerned about overreaching its authority.

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The New “Shared Responsibility” Power

So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”

Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act – to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”

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So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”

Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act – to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”

Over at SCOTUSblog, Ilya Shapiro’s perceptive post is entitled, “We won everything but the case.” It is worth reading in its entirety. Scott Rasmussen notes that ObamaCare has already lost in the court of public opinion. The electorate will have the opportunity to use its own constitutional power in 130 days.

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The Chief Justice’s Irresponsible Decision

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

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I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

Conservatives who are (justifiably) upset with Roberts’ decision shouldn’t understate Roberts’ contribution to conservative jurisprudence. As a good friend put it to me, these three premises are absolutely central to contemporary conservative legal thought—and those arguments are now effective law. For example, his dramatically narrowed reading of the Commerce Clause is now binding precedent. This is no small achievement. Lower court judges cannot countermand it unless the Supreme Court itself does so in a future case. And this particular Court, at least, is unlikely to do that. In that respect, then, Chief Justice Roberts moved the Court in a rightward direction—and, his defenders will say, he did so by showing self-restraint and without igniting a political war.

Perhaps. But in the end, Roberts decided the case wrongly—and one cannot help but believe he did so knowingly.

It seems clear that what animated Roberts’ decision was his determination to (in his mind) protect the reputation of the Court by preventing it from overturning the signature domestic achievement of the Obama administration. If the Supreme Court had overturned the Affordable Care Act, it would rank among the most significant (and controversial) cases in American history. Roberts, a man with modest, institutionalist tendencies, did not want to emblazon the Affordable Care Act in government textbooks forever more.

Which makes his decision understandable—but still, in my mind, ultimately irresponsible. Roberts decided on a pre-ordained outcome; he would uphold the Affordable Care Act by essentially re-writing it—an unusual approach for a man who has in the past insisted that it’s inappropriate for the Court to legislate from the bench.

The main challenge Roberts faced was to jerry-rig a (Tax Clause) argument to get him to where he was determined to end up. He employed specious, result-oriented reasoning in order to achieve an unprincipled—but for him, an institutionally desirable—outcome.

It was simply not his place to do this. And on what may have been the most important decision he is ever called upon to write, John Roberts produced a political, even disingenuous, and too-clever-by-half opinion. (Consider the withering dissent by Justices Scalia, Kennedy, Thomas and Alito to be mandatory reading. “What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution,” according to the four Justices. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”)

Chief Justice Roberts put what he perceived to be the interest of the Court ahead of his fidelity to the Constitution. He ended up doing damage to both.

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The Supreme Court’s Surprise

Well, the Supreme Court, as it has so often before, surprised nearly everybody. Most people thought Justice Kennedy was the pivotal vote. He wasn’t. He thought the whole Affordable Care Act unconstitutional, as did Justices Alito, Scalia, and Thomas. The four liberal justices would have upheld the whole act. It was Chief Justice Roberts who made all the difference, and his idiosyncratic reasoning will have profound constitutional implications far beyond ObamaCare. Here are three, a distinctly mixed bag.

1) He limited federal power under the Commerce Clause. It is not constitutional to require people to buy a product. The clause is limited to regulating commerce that is, not commerce the government wants to see. That’s a big deal, because had the requirement been upheld, the power of the federal government under the Commerce Clause would have become essentially unlimited. As was pointed out in oral argument, you could be required to buy broccoli.

2) He greatly expanded the taxing power. Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

3) He considerably limited federal power over the states. The Tenth Amendment has been largely a dead letter for decades, declared a mere truism. (In which case, why did the Founding Fathers include it?) But Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.

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Well, the Supreme Court, as it has so often before, surprised nearly everybody. Most people thought Justice Kennedy was the pivotal vote. He wasn’t. He thought the whole Affordable Care Act unconstitutional, as did Justices Alito, Scalia, and Thomas. The four liberal justices would have upheld the whole act. It was Chief Justice Roberts who made all the difference, and his idiosyncratic reasoning will have profound constitutional implications far beyond ObamaCare. Here are three, a distinctly mixed bag.

1) He limited federal power under the Commerce Clause. It is not constitutional to require people to buy a product. The clause is limited to regulating commerce that is, not commerce the government wants to see. That’s a big deal, because had the requirement been upheld, the power of the federal government under the Commerce Clause would have become essentially unlimited. As was pointed out in oral argument, you could be required to buy broccoli.

2) He greatly expanded the taxing power. Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

3) He considerably limited federal power over the states. The Tenth Amendment has been largely a dead letter for decades, declared a mere truism. (In which case, why did the Founding Fathers include it?) But Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.

Judging by the signs being carried, the overwhelming majority of the crowd outside the Court this morning was anti-ObamaCare. With the upholding of the mandate, ObamaCare survives. For now. But I suspect the already energized anti-Obama forces in this year’s election will now be supercharged. The only way to get rid of this deeply pernicious piece of legislation will be to get rid of Obama. Requiring all candidates for federal office to sign a promise to repeal ObamaCare as a precondition of support would be a starter.

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Liberal Second-Guessing Won’t Make ObamaCare Constitutional

With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.

The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.

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With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.

The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.

The problem wasn’t the tactics pursued by ObamaCare advocates either in court or outside it. The problem was a bill that proposed an expansion of federal power that even the Commerce Clause — that catchall mechanism used to justify every new federal power grab for a century — couldn’t support.

The bill did help generate a political earthquake in the form of the Tea Party that led to the Republican landslide in the 2010 midterms that erased the Democratic majority who passed the act. But better advocacy on the part of the bill’s supporters would not have prevented conservatives and libertarian lawyers from bringing forth the successful challenges that two lower federal courts have already accepted.

If Democrats like Pelosi couldn’t imagine anyone taking those challenges seriously it is not just because they live in a liberal echo chamber where conservative ideas are viewed with as much contempt as conservative politicians. It is because after nearly 100 years of liberal judicial activism that created the current federal leviathan, they had come to believe there were no limits on that power. If Congress could regulate any kind of commerce, why wouldn’t liberals think that this extended even to commerce that didn’t already exist or even inactivity and thereby make it legal for the government to demand that individuals purchase health insurance?

Since for decades liberals have treated a more libertarian approach to the constitution with scorn, why would anyone, especially that former law professor sitting in the White House, have thought differently?

Of course, as the Times points out, the constitutional challenge would have been avoided if the legislation had been framed more explicitly as a tax which the federal government has the right to levy. But Obama and Pelosi had a hard enough time getting a Democrat-controlled Congress to pass it without explicitly selling it as a massive tax increase though that is, in effect, what the bill is. In that form, it would never have been adopted.

As for Turley’s court-packing scheme, the transparently political nature of his appeal renders it absurd. He’s right that there’s nothing sacred about the number nine but since the current format has been in place since 1869, there’s no reason to change this tradition. Any expansion would be inherently political, an attempt to overturn the current court majority by a president and a Congress that didn’t like their opinions on the constitution. If Franklin Roosevelt couldn’t get away with such an idea in 1938 when he proposed it, does anyone seriously believe Barack Obama or Mitt Romney or any other president in the foreseeable future can do so?

The liberal dilemma has no more to do with the number of justices than it does with supposed shortcomings in the strategy adopted by the White House or Congressional Democrats. If the bill goes down this week it will be because a majority on the court have realized that a government that is given the power to invent as well as to regulate commerce is a threat to our liberty. And no clever tactic can make that acceptable to the majority of Americans who oppose ObamaCare or the judges who will vote against it.

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Reading Tea Leaves on ObamaCare

We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

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We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

That’s pretty interesting, if Roy’s third-hand sources are correct. If the Court hasn’t decided how to rule on this question, we could be waiting longer than just another week or two. The consensus among journalists and others closely following this seems to be that the ruling will come next Monday, or possibly later next week if the Court needs additional time. But there’s no deadline, and the Court can pretty much do what it wants when it comes to timing.

Roy also notes an interesting development from Justice Scalia, who released a book this week clarifying his position on a decision related to the Commerce Clause:

Wickard, [Scalia] writes, “expanded the Commerce Clause beyond all reason” by opining that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.” …

The bottom line is that if Scalia thinks Wickard was wrongly decided, he’s almost certain to vote to overturn the mandate. This isn’t a surprise based on his commentary at oral argument, but it may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.

After Scalia’s tough questioning during the health care arguments, it seemed highly likely that he would side against the individual mandate. But Obama administration attorneys were reportedly speculating prior to that that Scalia could be a swing vote to uphold the mandate based on his previous opinions related to the Commerce Clause. Scalia may be attempting to reconcile this in his latest book.

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Will Broccoli Preserve American Liberty?

If sometime this month the Supreme Court rules ObamaCare unconstitutional liberals will need a scapegoat to blame for what would be not just a defeat for the president’s signature legislative achievement but a historic turning point in the struggle against the aggregation of federal power. But according to the New York Times, the culprit won’t be congressional Republicans or the Tea Party. Instead, it will be the humble green vegetable that many Americans profess to hate: broccoli.

According to the Times’s James Stewart, the turning point in the battle to overturn the health care law was the moment a simple argument illustrating the way liberals have been using the Commerce Clause of the Constitution to expand federal power took hold of the public imagination. It is, as he writes, the “defining symbol” of the debate. As Justice Antonin Scalia pointed out from the bench during oral arguments on the issue earlier this year, if Congress can require every citizen to purchase health insurance simply because it was perceived to be in the national interest, then it could make people buy broccoli, too. Stewart traces the origins of the analogy that has been raised repeatedly by libertarians since President Clinton’s attempt to ram a national health insurance bill through Congress in the 1990s. But while liberals dismiss it as simplistic, it actually goes straight to the heart of the issue. Indeed, if ObamaCare is overturned and the Court begins a rollback of the way liberals have been abusing the Constitution for a century, it may be that broccoli will have played a key role in preserving American liberty.

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If sometime this month the Supreme Court rules ObamaCare unconstitutional liberals will need a scapegoat to blame for what would be not just a defeat for the president’s signature legislative achievement but a historic turning point in the struggle against the aggregation of federal power. But according to the New York Times, the culprit won’t be congressional Republicans or the Tea Party. Instead, it will be the humble green vegetable that many Americans profess to hate: broccoli.

According to the Times’s James Stewart, the turning point in the battle to overturn the health care law was the moment a simple argument illustrating the way liberals have been using the Commerce Clause of the Constitution to expand federal power took hold of the public imagination. It is, as he writes, the “defining symbol” of the debate. As Justice Antonin Scalia pointed out from the bench during oral arguments on the issue earlier this year, if Congress can require every citizen to purchase health insurance simply because it was perceived to be in the national interest, then it could make people buy broccoli, too. Stewart traces the origins of the analogy that has been raised repeatedly by libertarians since President Clinton’s attempt to ram a national health insurance bill through Congress in the 1990s. But while liberals dismiss it as simplistic, it actually goes straight to the heart of the issue. Indeed, if ObamaCare is overturned and the Court begins a rollback of the way liberals have been abusing the Constitution for a century, it may be that broccoli will have played a key role in preserving American liberty.

As Stewart writes, libertarians pointed out during the Clinton-era debate that if the government could force people to do something or participate in commerce that they had not already engaged in (as opposed to regulating activity already commenced), then there was nothing it could not force them to do including eating certain foods or not eating them. This argument was greeted with “howls of derision” by the legal establishment, but it helped convince some jurists and politicians (including a conservative like Sen. Orrin Hatch who originally supported the idea of an individual mandate) that the drive to impose health care was about more than just insurance.

Liberals continue to argue that the talk of broccoli and a nanny state compelling us to eat our vegetables is a diversion from the important question of how to provide health care for all Americans. But the broccoli analogy has initiated exactly the sort of debate about the constitutional limits of government power that have been ignored or stifled for much of the past century.

The point is not about whether health insurance is a good idea or the value of any other potential government service or program. It is whether there is anything, no matter how great its intrinsic worth, that the Congress cannot impose on the nation under the loose authority granted to it by the Commerce Clause? Though Justice Elena Kagan conceded during her confirmation hearing that legislation that would require Americans to eat fruits and vegetables would be a “dumb law,” alluding to the egregious nature of the requirement still begs the question of whether the liberal interpretation of the Constitution would still allow it or any other similarly absurd proposal to stand as constitutional.

For too long liberals intent on telling Americans what they should do or even think have assumed that the law would always be interpreted as giving them leeway to expand federal power wherever it served their interests. They are flummoxed if not infuriated by the way this elementary point about broccoli has brought their latest enterprise to a standstill. They rightly fear that if the courts begin to look at such cases from the frame of reference of preserving individual liberty, the intellectual house of cards that has buttressed their arguments for generations will soon collapse.

If the court strikes down ObamaCare, perhaps Tea Partiers should start displaying a new broccoli flag alongside the historic Gadsden “Don’t Tread on Me” banner they like to sport. Like it or not, more than anything else, broccoli has helped remind Americans that liberty is precious and must be defended against the government.

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Still More Liberal Legal Meltdown

A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

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A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

As for conceptual and economic sophistry, nothing is likely to top Justice Breyer’s suggestion during oral argument that, on the day you were born, “because you are a human being, [you] entered this particular market, which is a market for health care.” Being born, as the trigger for power under the Commerce Clause, seems a bit of a stretch even for a liberal constitutionalist.

In any event, today’s WSJ letter, dismissing the challenge to ObamaCare as “sophistry,” is another example (to use John Podhoretz’s words) of “the unerring liberal inability” to credit the arguments of opponents – and another pre-emptive libel of a Court that may be about to moor Congress’s power to the text.

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Presidential Chutzpah

Presidential chutzpah. Well, at least you can admire him for that perhaps. After all, someone who graduated from Harvard Law School, edited the Harvard Law Review, and taught constitutional law at the University of Chicago Law School must be familiar with Marbury v. Madison. As Wikipedia explains, it’s an important case:

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional.” The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

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Presidential chutzpah. Well, at least you can admire him for that perhaps. After all, someone who graduated from Harvard Law School, edited the Harvard Law Review, and taught constitutional law at the University of Chicago Law School must be familiar with Marbury v. Madison. As Wikipedia explains, it’s an important case:

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional.” The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

And yet President Obama yesterday implicitly claimed never to have heard of it, allowing him to say regarding Obamacare that it would be an “unprecedented, extraordinary” step for the Supreme Court to overturn legislation passed by a “strong majority of a democratically elected Congress.” The precedents go back 209 years and, as Jonah Goldberg pointed out on “Special Report” last night, the Supreme Court has been overturning acts of Congress ever since, on average every 16 months. So overturning Obamacare would be about as unprecedented as the sun rising in the east tomorrow morning. Actually the precedents go back even further, as Alexander Hamilton mentioned the power of judicial review in Federalist Paper 78, written in 1788. The last president to seriously challenge the court’s power to overturn an act of Congress under the doctrine of judicial review was Andrew Jackson, who famously said after one decision he didn’t like, “The court has made its decision; now let it enforce it.”

The court has overturned laws based on the Commerce Clause as recently as 1995 (United States v. Lopez) and 2000 (United States v. Morrison). Both of those were relatively minor cases, although significant for putting limits on federal power under the Commerce Clause for the first time since the early New Deal. But major pieces of legislation have also been overturned. The National Recovery Act of 1933 was the last piece of legislation passed during the “Hundred Days.” Its purpose was, essentially, to cartelize the entire United States economy under the direction of the National Recovery Administration (the NRA, whose symbol was the famous blue eagle). Franklin Roosevelt called the legislation “the most important and far-reaching ever enacted by the American Congress.” But that didn’t stop the Supreme Court from overturning it in May 1935, by a vote of 9-0.

The National Recovery Act passed the House by a large majority and the Senate by 46-39. The “strong majority” mentioned by Obama in the passage of Obamacare did not exist. It passed the Senate 60-39 on Christmas Eve, when the Senate, briefly, had a filibuster-proof majority. But by the time a vote neared in the House, that filibuster-proof majority had vanished with the election of Scott Brown in Massachusetts. So the House had to pass the Senate bill unchanged in order to get it to the President’s desk. Only much arm-twisting and deal-making allowed the bill to pass the House with a majority of only seven votes, 219-212. It garnered not a single Republican vote in either house, the first time so important a piece of legislation was passed on a totally partisan basis.

As I said, one can only admire his chutzpah. It seems there is simply no lie President Obama will not tell in pursuit of his agenda. He can count on the mainstream media buying it, but will anyone else?

 

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Is Justice Breyer a Swing Vote?

Solicitor General Donald Verrilli was criticized by Obamacare supporters for failing, during his oral argument, to articulate a “limiting principle” on congressional power under the Commerce Clause — because he must have known the justices would ask for one. But Elena Kagan couldn’t answer the question two years ago; prominent Harvard and Georgetown professors couldn’t answer it a year ago; last year, the government conceded the lack of a limiting principle. The problem is a little deeper than Verrilli’s presentation.

The point was demonstrated again in the colloquy Justice Breyer had with Michael A. Carvin. Carvin noted that if Congress exceeded its power under the Commerce Clause, the law “doesn’t somehow become redeemed because it has beneficial policy effects in the health care market.” That would mean Congress could compel everyone to buy anything if Congress thought it beneficial, since “every compelled purchase promotes commerce.” Justice Kagan started to ask a question, but Breyer initiated a long colloquy with Carvin (Transcript, pp. 85-90), which ended as follows:

JUSTICE BREYER: … then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?

MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers –

JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question. [Emphasis added].

JUSTICE KAGAN: I’ve forgotten my question. (Laughter).

MR. CARVIN: I — I was facing the same dilemma, Justice Kagan.

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Solicitor General Donald Verrilli was criticized by Obamacare supporters for failing, during his oral argument, to articulate a “limiting principle” on congressional power under the Commerce Clause — because he must have known the justices would ask for one. But Elena Kagan couldn’t answer the question two years ago; prominent Harvard and Georgetown professors couldn’t answer it a year ago; last year, the government conceded the lack of a limiting principle. The problem is a little deeper than Verrilli’s presentation.

The point was demonstrated again in the colloquy Justice Breyer had with Michael A. Carvin. Carvin noted that if Congress exceeded its power under the Commerce Clause, the law “doesn’t somehow become redeemed because it has beneficial policy effects in the health care market.” That would mean Congress could compel everyone to buy anything if Congress thought it beneficial, since “every compelled purchase promotes commerce.” Justice Kagan started to ask a question, but Breyer initiated a long colloquy with Carvin (Transcript, pp. 85-90), which ended as follows:

JUSTICE BREYER: … then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?

MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers –

JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question. [Emphasis added].

JUSTICE KAGAN: I’ve forgotten my question. (Laughter).

MR. CARVIN: I — I was facing the same dilemma, Justice Kagan.

Since Justice Breyer saw the point, it would be nice to think of him as a swing vote, possibly adding his vote to a landmark opinion upholding the fundamental constitutional principle of limited government.

But Breyer, as the leading proponent of a “living” Constitution, is unlikely to do that. The guiding principle for such proponents seems to be that the Constitution must contain — somehow, somewhere, maybe in a penumbra, maybe in provisions stretched beyond the framers’ intent — all the rights justices think individuals should have, and all the powers over individuals that justices decide the government needs. If necessary, “commerce” can simply be re-defined to mean, “being born.”

Breyer cut Carvin off as he started to suggest the framers would have rejected that view, and tried to hand the ball back to Kagan. But by then Kagan had forgotten her question, and Breyer had conclusively demonstrated that the problem with the government’s case was not Verrilli’s inability to articulate a limiting principle, but the fact there is no such principle to articulate. The “living” Constitution has you as soon as you are born.

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A Bad Day in Court?

The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

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The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

The Washington Examiner’s Phil Klein reports the conservative justices seemed highly skeptical of the administration’s arguments during questioning, despite speculation that Chief Justice Roberts might rule in favor of upholding the law. Justice Kennedy, who is most likely to be the deciding vote, also appeared dubious:

Justice Anthony Kennedy, long seen as the swing vote in the case, repeatedly said that the mandate was unprecedented and that the government had a “heavy burden” to justify it. He said that it changed the relationship between the individual and the government in a “fundamental” way.

Also, one of the key arguments made by challengers in the case, is that earlier rulings of the Commerce Clause don’t apply here because the mandate forces people to enter the stream of commerce. On this point, Kennedy asked Obama’s Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”

The argument today centered on whether or not the individual mandate is a tax. The administration maintains it is a tax, which gives Congress the constitutional authority to implement it. By all accounts, the justices didn’t seem to accept that characterization of the mandate today. But of course, this is all speculation based on the questions and tone from the justices – which isn’t always an accurate indicator of where they stand – and there’s still another day of arguments tomorrow.

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ObamaCare and the Constitution

I agree with the Wall Street Journal that the Supreme Court’s case deciding the constitutionality of the Patient Protection and Affordable Care Act (with oral arguments commencing today) is among the most important and consequential in our lifetime. “The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years,” according to the Journal. “It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.”

But while President Obama is pushing the boundaries of federal power to the breaking point, his actions can also be seen as the logical extension of the progressive movement, what with its collectivist impulses, its disregard for the separation of powers, and its basic contempt for the American Constitution. The Constitution, after all, is (among other things) a check on the power of the state. Which means that James Madison’s handiwork is an impediment to the designs of progressives, who want to cede ever greater authority to the federal government.

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I agree with the Wall Street Journal that the Supreme Court’s case deciding the constitutionality of the Patient Protection and Affordable Care Act (with oral arguments commencing today) is among the most important and consequential in our lifetime. “The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years,” according to the Journal. “It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.”

But while President Obama is pushing the boundaries of federal power to the breaking point, his actions can also be seen as the logical extension of the progressive movement, what with its collectivist impulses, its disregard for the separation of powers, and its basic contempt for the American Constitution. The Constitution, after all, is (among other things) a check on the power of the state. Which means that James Madison’s handiwork is an impediment to the designs of progressives, who want to cede ever greater authority to the federal government.

Rather than publicly argue that we ought to jettison the Constitution, those on the left have settled on a strategy to fundamentally reinterpret it. This project travels under the banner of a “living Constitution.” What this means in reality is that the Constitution has no fixed meaning; it is as malleable as hot wax, to the point that new rights can be invented and old rights can be jettisoned based on judges’ predilections, ideologies, passions, and will; on the season of the year, the day of the week, the time of the day. It really doesn’t matter, since the Constitution is viewed as a means to a (political) end. It is a rootless document. Everything is up for grabs.

In that sense, what liberal judges and justices do is something of a charade. They will simply make the Constitution conform to their pre-ordained conclusions (and so abortion is deemed to be a constitutional right, the death penalty is cruel and unusual punishment, the Commerce Clause allows for an individual health care mandate, et cetera). But for a variety of reasons, they cannot be fully candid about how low their regard for the Constitution is. And so they often go through contortions that are intellectually unserious and, if the stakes were less, comical.

The Constitution is an “evolving” document, we’re told by those on the left, conforming to “standards of decency that mark the progress of a maturing society.” But who gets to decide which direction the evolution goes? Who is the arbiter of enlightenment, the adjudicator of decent standards, the fount of all human wisdom? Give yourself a gold star if you answered “a Supreme Court Justice.” Because surely Sonia Sotomayor and Stephen Breyer know more about standards of decency than — well, than whom exactly?

As Justice Scalia has written, “As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.”

For progressives, that may be precisely the point.

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