Now that it is generally agreed that last week’s Obamacare arguments before the Supreme Court went rather disastrously for the law’s defenders–though it ought to be stressed that anyone who says that he/she is 100% sure how the Court will vote is either a liar or a fool–a debate has arisen regarding how legal commentators who are defenders of the law could have been so taken by surprise by the Court’s apparent hostility towards the law.
A host of commentary informs us (quite reliably) that legal academicians and commentators have been inhabiting a kind of intellectual bubble that has prevented them from even contemplating the possibility that a good argument could be made against the proposition that Obamacare is constitutional. Couple this with efforts made by legal commentators and academicians to argue that finding part or all of the Act is unconstitutional would be crazy, and one goes a long way towards explaining the shock that the legal commentariat sympathetic to Obamacare must be feeling right now.
The emerging possibility that Obamacare may be ruled unconstitutional in part, or in whole has set the commentariat’s teeth on edge. They now tell us that it would be a radical act of judicial activism to strike any part of the Affordable Care Act down. It’s nice and charming, of course, that this lot is suddenly interested in stopping judicial activism, but they are barking up the wrong tree. One cannot stretch the meaning of the Commerce Clause to encompass the regulation of complete non-activity in the economic sphere, and then express surprise when the Supreme Court appears to push back against the notion. I know that it would be convenient for liberals if they get to enact their public policy desires via legislation–no matter how unconstitutional those public policy desires might be–and then get to claim that any attempt on the part of the Supreme Court to roll that legislation back would constitute “judicial activism,” but that’s not quite how things work. To be sure, acts of Congress receive deference from the courts, and perhaps the Affordable Care Act will benefit from such deference, but “deference” doesn’t mean “acts of Congress are right all the time,” or even “acts of Congress are right when liberals want them to be right.”
Now that it is clear that the commentariat has failed to shape the terms of the debate, it is busy working to delegitimize any finding that Obamacare is unconstitutional. The Internet is replete with outraged protests against finding that a mandate conservatives once favored ought to be found to have run afoul of the Constitution; never mind that one can easily respond to such an argument by pointing out that the mandate, now embraced by the Obama administration, was once opposed a certain onetime senator from the state of Illinois, who curiously enough, now happens to head up the Obama administration. Notwithstanding the hypocrisy of the protests against fake judicial activism by the proponents of the real thing, it is worth remembering that President Obama–who is now busy trying to launch a preemptive attack on the legitimacy of the Supreme Court–was once entirely enamored of the idea of courts acting against the will of Congress:
President Obama was not always opposed to the Supreme Court “overturning a law that was passed by a strong majority of a democratically elected Congress.” In 2008, while running for President, then-Senator Obama praised the Supreme Court’s Boumediene decision, which overturned bipartisan national security legislation. According to the June 13, 2008 Los Angeles Times he called the decision “an important step toward reestablishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus” and praised the Court’s rejection of President Bush’s ”attempt to create a legal black hole at Guantanamo.”
More in this vein from Dave Kopel, who is properly blistering:
President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.
That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.
Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S.(1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.
It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.
That a former law lecturer at an elite law school should so blatantly misrepresent facts, history, and the law–not to mention his own record of supporting judicial findings that certain acts of Congress should be found unconstitutional–is nothing short of astonishing.
As I mentioned earlier, I can’t even begin to say for certain how the Supreme Court will rule on the Affordable Care Act. But if the outcome of the case rested on the intellectual honesty of the Act’s proponents, along with their ability to resist epistemic closure, then the Court would and should rule 9-0 in favor of striking the Act down.