The Left Suddenly Uncomfortable with Concept of Judicial Review

Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare.  Yesterday he somewhat toned down his remarks, but still managed to step in it.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”

As James Taranto points out, this response is wrong on multiple levels.  The case that Obama cites in fact pre-dates the New Deal by a good thirty year.  Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation.  As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters.  And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional.  In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.

But other than that, I guess Obama was spot on.

The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review. It’s funny that they have had such a collective change of heart after relying on the Courts for decades to implement social and economic policies that popular and legislative majorities routinely refused to endorse.  Now that there is a real threat that the Supreme Court could strike down all or part of one of the Democratic party’s most important legislative victories, the Court has become a symbol of all that is wrong with America.  Venerable constitutional scholar Maureen Dowd expresses her frustration today:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history.

It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.

All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

Dowd completely eviscerates the Supreme Court’s reasoning in a series of cases where it completely over-reached, carefully laying out reasons why the Court acted wrongly and why the questions posed during the hearings last week were faulty.

Okay, I’m a few days late for April fools, but Dowd does none of that.  She just screeches about the usual litany of Supreme Court cases that liberals always complain about (Bush v. Gore, Citizens United), conveniently ignoring all of the cases in which the Court ignored the Constitution in order to invalidate state laws.

After stumbling and bumbling through one of the most horribly written and unfocused print columns I have ever seen, Dowd ends by saying:

But it isn’t conservative to overturn a major law passed by Congress in the middle of an election.

So evidently it is not within the province of the Court to strike down legislation if we’re in election season.  Can the Court only decide significant cases in non-election years?  I guess Dowd must hold up Roger Taney as the model of Supreme Court reticence.  After all, he did not release his Dred Scott opinion until after the 1856 election, and by doing so helped ensure that the Democrats did not lose said election.  Ah, if only we had more jurists as noble as Roger Taney.

Whatever the case, it’s odd that Dowd has now seen the light on judicial activism.  After all, it wasn’t that long ago that Dowd mocked Antonin Scalia for having the temerity to dissent in the case of Lawrence v. Texas. Relying as usual on her laser-like precision with matters relating to the constitution, she told “Nino’ that he should “loosen up.”  And neither Dowd, nor Barack Obama for that matter, seemed too upset when the Supreme Court handed down its decision in Massachusetts vs. EPA in which it ruled that EPA must regulate carbon emissions.  Speaking of Massachusetts, again, neither said a peep against a Massachusetts state court ignoring the Massachusetts state constitution in order to declare gay marriage to be an inalienable right, completely bypassing the state legislature.  And of course we don’t hear too many people on the left griping about judicial activism with regards to abortion and contraception.

What’s sad is that Obama and Dowd are not completely wrong to at least question the legitimacy of judicial activism in certain respects.  It has become accepted as a matter of fact that the Supreme Court (and the judiciary in general) ought to be the final authority on all constitutional matters.  As I wrote about several years back, a Washington Post editorial suggested that only the Supreme Court had any say in constitutional matters.  In an editorial about Congress’ refusal to grant voting rights to DC, the Post said:

No doubt there are strong arguments on both sides of the constitutional question; scholars of renown are divided. But the way to resolve the question is in court. That’s why the bill included a provision for expedited review to the Supreme Court. The opponents’ unwillingness to go to the court suggests they weren’t all that confident in their constitutional argument.

Such logic is not confined merely to the Post.  This highlights one of the fundamental problems with the left and how it has viewed the Court.  For years, not only did they express no reservations about judicial review, but to them the courts were the only legitimate venue for constitutional decision-making.  Congress need not worry their collective little heads over such weighty matters.  Even Republicans have expressed similar feelings.  When Bush signed McCain-Feingold he all but said that he felt that the law was unconstitutional.  But instead of utilizing his veto pen*, Bush let the Supreme Court decide.  And of course it did, upholding most of the bill initially, though finally showing some backbone in the one case that the left has decided to harp upon as a case of raw judicial usurpation of power.

*: A completely legitimate use of the veto, by the way, and in fact for the first 60 years of the republic presidents only used the veto pen because of concerns with the unconstitutionality of legislation, not because of policy disagreements.

In the case that established the case for judicial review, Chief Justice John Marshall himself never declared that the Supreme Court was the sole arbiter of constitutionality.  He made clear that the Court was an arbiter, but they were one of three branches in the federal government, and all three had the ability to discern the constitutionality of legislation.  Yet for years almost all on the left, and a fair number on the right, seemed to think that the judiciary was the only branch of government that need decide whether or not laws were constitutional.

So now the left is taking a polar opposite stance.  Suddenly the concept of judicial review itself is under attack.  Now that the Court has a  majority of Justices who don’t view the Constitution as some permeable plaything, we have to rethink 200 years of our republic’s history.

How convenient.

36 Responses to The Left Suddenly Uncomfortable with Concept of Judicial Review

  • Much of the Left is going through a collective melt down that is a pure joy to behold. They really did buy into the malarkey that Obama was going to be FDR II. Now that he has turned out to be, on his good days, Jimmy Carter II, they are left to rant against the Supreme Court to attempt to save the miserable ObamaCare, the sole accomplishment of the Obama administration, unless they consider an accomplishment the amassing in three years of the amount of debt it took the Bush administration eight years to run up.

  • Mike Petrik says:

    I rarely disagree with Don (or Paul for that matter), but my take on Obama’s commentary differs. I don’t think he is registering any discomfort with the concept of judicial review. He is simply claiming that the Court should be deferential to the legislature rather than activist in its own understanding of its role. And he is pointing out that this is a conservative principle that should be embraced by a conservative Court, implying that to do otherwise would be hypocrisy. Of course, the real hypocrisy rests with Obama et al who normally have no problem with judicial activism trumping state or federal legislation that they find disagreeable.

    I think the claims that the administration is somehow suggesting that an adverse ruling by the Court would be invalid or illegitimate are over the top and largely just grandstanding attempts to score rhetorical points. When he suggests that the Court would be over-stepping its powers to strike down the mandate Obama is saying exactly the same thing that we conservative said, and quite correctly, with respect to the Court’s decision in Lawrence. We were making a claim on the merits, as is he. No one is suggesting that the Court is without the legal power to render a decision with which many will disagree and honestly believe is wrong and therefore an inappropriate exercise of authority.

    With respect to judicial activism, this case presents a clash of two conservative principles. First, courts should be uphold laws even if they disagree with them, as long as they are constitutional. In other words, courts should not confuse their policy preferences with constitutional boundaries. Second, courts should respect the fact that the Constitution allocates only limited powers to the federal government, with those unallocated (including general police powers) resting with the states, subject to the Bill of Rights. Opponents of Obamacare are relying on the second principle to trump the first. Obama and other proponents are citing the first principle as a tactic to convince the Court and the American public that the mandate is constitutional, even from a conservative perspective — nothing out of bounds about that really.

    Finally, I don’t think that Obama’s inference of hypocrisy misses the mark completely. The mandate issue is not an easy one. On the one hand, plainly it is an attempt to regulate interstate commerce. But doing so by requiring people to purchase a product whether they want to or not was almost certainly beyond the comprehension of the Framers and also without precedent. But nor is their precedent to the contrary. As odious as this legislation is to me, I do not consider its constitutionality an easy question. just because the Framers may not have envisioned an expansive federal government does not mean they didn’t give us the architecture to allow for it.

    Obama is a terrible President for a host of reasons. We hardly need to manufacture any phony ones — and I think this one really is phony.

  • Paul Zummo says:

    Perhaps it’s not a direct refutation of the concept of judicial review (though in the case of Dowd, she is certainly implying as much). What Obama is doing is casting doubt on the legitimacy of the Court’s decision, and I suspect we’ll see a lot more of this in various corners on the left over the coming months. I do honestly think that his original comments were made in attempt to sway the Court. Plan B is to convince the public that the Court is usurping its legitimate authority.

    Do I put it beyond Obama to try and make an end-run around the Court? No. At least, there is greater than zero chance that he would try and pull an Andrew Jackson. I’m not saying it’s likely, but sadly there is a chance.

    As odious as this legislation is to me, I do not consider its constitutionality an easy question.

    I do, but we’ll have to agree to disagree on that question.

    We hardly need to manufacture any phony ones — and I think this one really is phony.

    I’m not sure it’s phony to point out that Obama is attempting – as usual – to demagogue an issue in order to cover his ass.

  • Obama’s minions are taking up the cudgels in support of his bullying of the Court. David R. Dow, Cullen Professor at the University of Houston Law Center, calls for the impeachment of Justices who vote against ObamaCare if they strike down ObamaCare.

    http://www.thedailybeast.com/articles/2012/04/03/impeach-the-supreme-court-justices-if-they-overturn-health-care-law.html

    What makes this hilarious is that Dow wrote a book called America’s Prophets: How Judicial Activism Makes America Great.

    http://www.amazon.com/Americas-Prophets-Judicial-Activism-America/dp/0313377081/ref=ntt_at_ep_dpt_4

    Mike, I have a huge amount of respect for you, as you know, but there is nothing phony about this issue. Obama knew precisely what he was doing when he picked this fight with the Court. This may well become the major issue this year, after the economy.

  • T. Shaw says:

    In 2008, it was “Hope and Change!”

    In 2012, it’s “Obey me!”

    They don’t know how to think. They only know what to think.

    Don,

    Plus, clueless Prof. Dow ain’t too smart. He apparently confused which SCOTUS impeachee he was ranting over.

    From an Instapundit commenter.

    “He’s not even writing about the right justice.

    “Samuel Chase is the justice who was impeached in 1805. Salmon Chase was the chief justice appointed by Abraham Lincoln in 1864.”

  • T. Shaw says:

    If they can make you buy health insurance, what else can they make you buy or make you do, or . . . ?

    The New York Sun: “Ex Parte Obama”

    “It’s been a long time since we’ve heard a presidential demarche as outrageous as President Obama’s warning to the Supreme Court not to overturn Obamacare. T he president made the remarks at a press conference with the leaders of Mexico and Canada. It was an attack on the court’s standing and even its integrity in a backhanded way that is typically Obamanian. For starters the president expressed confidence that the Court would “not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” . . .

    “It is outrageous enough that the president’s protest was inaccurate. What in the world is he talking about when he asserts the law was passed by “a strong majority of a democratically elected Congress”? T he Patient Protection and Affordable Health Care Act barely squeaked through the Congress. In the Senate it escaped a filibuster by but a hair. T he vote was so tight in the house — 219 to 212 — that the leadership went through byzantine maneuvers to get the measure to the president’s desk. No Republicans voted for it when it came up in the House, and the drive to repeal the measure began the day after Mr. Obama signed the measure.

    “It is the aspersions the President cast on the Supreme Court, though, that take the cake. We speak of the libel about the court being an “unelected group of people” who might “somehow overturn a duly constituted and passed law.” This libel was dealt with more than two centuries ago in the newspaper column known as 78 Federalist and written by Alexander Hamilton.”

  • Mike Petrik says:

    For the record, Dowd is an idiot shill. Who cares what she thinks. Dow is also a shill, if not an idiot. He, like many college profs, doesn’t have a bone of academic integrity in him. It may be that these fools are doing Obama’s bidding, but I don’t think one can fairly tease that from the words that Obama has actually spoken. Obama is not attacking judicial review — he is asserting that his legislation is constitutional if considered under a conservative lens. It is not a silly argument, even if hypocritical. Moreover, while Obama failed to mention Lopez and Morrison those cases really don’t help opponents of Obamacare aside from the fact that they stand for the proposition that the commerce clause is not a blank check.

    Finally, regarding impeachment of judges for rendering disagreeable decisions, Dow’s position is silly beyond measure. The mandate question is unprecedented and the commerce clauses reach in that context cannot be easily discerned from the words. Unlike Paul, I can see merit in both arguments. Roe and progeny, however, not so. The Court just fabricated law to suit its policy preferences and in so doing truly did act outside the scope of its power. But even the most conservative jurists did not call for impeachment or governmental disobedience of the decision, although the case for such would at least be tenable. Professors like Dow are whores.

  • Karl says:

    Was the DOMA subject to “executive” judicial review when the DOJ, I believe, as ordered/requested by Mr. Obama publicly announced that it would no longer defend that piece of legislation passed by both houses of congress or was that merely an act in contempt of congress, which is ok when the executive branch has “issues” with legislation but is not ok when the, constituionally mandated, judicial branch has problems of its own with legislation it is required to review?

    Why has this man not been removed from office? Oops, I forgot, he is demagogue
    and they control the senate.

  • Mike Petrik says:

    Pinky, I can only imagine. The guy thinks Lochner was a commerce clause case involving the scope of Congress’s commerce clause powers. Yikes. What a dope.

  • Pinky says:

    Well, I certainly didn’t mean any disrespect. And I’m sure he’s an excellent law professor, when he’s in his comfort zone. But apparently making precise public statements about the most basic elements of Constitutional law is outside that zone. See, I’m not a lawyer, so I would’ve thought that ability was important. That shows how little us non-lawyers really understand.

  • Paul Zummo says:

    Rush suspects that Obama is playing dumb, to some extent, and is playing to the lowest common denominator. I suspect there is something to that. That said, yeesh, I pity any future lawyers trapped in a classroom with him.

  • Late in commenting. Just my typical hell fire and brimstone. I don’t expect there to be any justice on this earth.

    Every single one of us mortal human beings are going to be subject to Judicial Review. We will on that Great and Terrible Day be judged by the Supreme Justice Himself, and that judgment will be based on our deeds. Those who today call the murder of the unborn the right to choose, and the filth of homosexual sodomy civil rights will stand before the Great White Throne with no excuse, facing eye ball to eye ball the Almighty Himself. May God have mercy on their souls, and on ours for no one is exempt. God, being perfect Love, is absolute Justice, and He will NOT let the murder of the unborn or the filth of homosexual sodomy go unavenged.

    Enter by the narrow gate; for wide is the gate and broad is the way that leads to destruction, and there are many who go in by it. Because narrow is the gate and difficult is the way which leads to life, and there are few who find it. Matthew 7:13-14

  • PM says:

    The Patient Protection and Affordable Healthcare Act. It’s name is tenuous. The words “protection” and “affordable” are vague and subject to changes over time, meaning to say that coverage of what for whom is not set in stone. Since the government has no money to pay for anything, the administrators of the insurance can change and eventually deny coverage. There’s an issue in Massachusetts with limiting the dental procedures of MassHealth. And, he’s talking about the people, ‘human element’, that would suffer without this – call it an etch a sketch act because, I think, it applies more to the 2700 pgs. of HHS Admin (and not Gov. Romney). Considering the way this administration cannot budget after years on the job, I doubt that it would happen with health insurance.

  • Donna V. says:

    From what I understand, Obama was not a Law professor, just a lecturer.

    “Obama is attempting – as usual – to demagogue an issue in order to cover his ass.”

    Yes, that’s his M.O., but although Barry is certainly a gifted demagogue, how do you get people angry because a law they never liked or approved of in the first place has been struck down? Two years ago, when this monstrosity was forced through Congress, I recall libs pooh-poohing the polls which showed Obamacare was despised by a majority of Americans. The conventional wisdom among leftists was that although the dumb American public (so inferior to those progressive Europeans) would initially resist the change, Old Silver Tongue would explain the goodness and necessity of the law so eloquently that our hard hearts would melt and we’d all be foursquare behind Obamacare by the time 2012 rolled around. Well, here it is, election year, and most Americans still think Obamacare stinks on ice. That wasn’t in the Dem script.

    Demagoging the issue will certainly motivate the Dem base. But the rest of us, who didn’t like the law then and don’t like it now? It’ll be a very tough sell, she said with a smile on her face.

  • Valentin says:

    Does anyone else think it’s ridiculously funny when Leftists whine about priests in ages past getting paid 10% tax which actually went to feeding people whereas now people have to pay something like 50% tax to the government and you don’t know what the hell most of it is funding. As far as health insurance goes if we had a monastary near every town and city the poor man could get free health care from monks. As far as I can tell Obama is a sneaky bastard who can’t be trusted as president, he is inconsiderate of the supreme court simply because of his acutely obvious overconfidence in his statements.

  • Joe Green says:

    Someone compiled a list of why Obama can’t run on his record. Any other “firsts”?

    • First President to apply for college aid as a foreign student, then deny he was a foreigner.

    • First President to have a social security number from a state he has never lived in.

    • First President to preside over a cut to the credit-rating of the United States

    • First President to violate the War Powers Act. .

    • First President to be held in contempt of court for illegally obstructing oil drilling in the Gulf of Mexico .

    • First President to defy a Federal Judge’s court order to cease implementing the Health Care Reform Law.

    • First President to require all Americans to purchase a product from a third party.

    • First President to spend a trillion dollars on ‘shovel-ready’ jobs when there was no such thing as ‘shovel-ready’ jobs.

    • First President to abrogate bankruptcy law to turn over control of companies to his union supporters.

    • First President to by-pass Congress and implement the Dream Act through executive fiat. .

    • First President to order a secret amnesty program that stopped the deportation of illegal immigrants across the U.S. , including those with criminal convictions.

    • First President to demand a company hand over $20 billion to one of his political appointees.

    • First President to terminate America ’s ability to put a man in space.

    • First President to have a law signed by an auto-pen without being present.

    • First President to arbitrarily declare an existing law unconstitutional and refuse to enforce it.

    • First President to threaten insurance companies if they publicly spoke out on the reasons for their rate increases.

    • First President to tell a major manufacturing company in which state it is allowed to locate a factory.

    • First President to file lawsuits against the states he swore an oath to protect (AZ, WI, OH, IN).

    • First President to withdraw an existing coal permit that had been properly issued years ago.

    • First President to fire an inspector general of Ameri-corps for catching one of his friends in a corruption case.

    • First President to appoint 45 czars to replace elected officials in his office. .

    • First President to golf 73 separate times in his first two and a half years in office, 90 to date.

    • First President to hide his medical, educational and travel records.

    • First President to win a Nobel Peace Prize for doing NOTHING to earn it.

    • First President to go on multiple global ‘apology tours’.

    • First President to go on 17 lavish vacations, including date nights and Wednesday evening White House parties for his friends; paid for by the taxpayer.

    • First President to have 22 personal servants (taxpayer funded) for his wife.

    • First President to keep a dog trainer on retainer for $102,000 a year at taxpayer expense.

    • First President to assets the Azan (Islamic call to worship) is the most beautiful sound on earth.

    • First President to take a 17 day vacation.

  • T. Shaw says:

    Dow, Dowd, Holder, Obama, et al are children of Satan. They do their father’s bidding.

    They were never on the side of truth.

    There is no truth in them.

    They do what is natural to them. They lie.

    Their father is the father of all lies.

  • Student says:

    I’m confused. So what’s the big deal? Obama says that Lochner was the last time that the court struck down a legislative measure. But conservatives are saying “Ha! That was only state legislation, not federal legislation!!”. What’s the point? Obama is not wrong about it – and you’re all agreeing with him: Lochner was struck down regardless if it’s state or federal.

  • Paul Zummo says:

    What’s the point? Obama is not wrong about it – and you’re all agreeing with him: Lochner was struck down regardless if it’s state or federal.

    Let’s see:

    He was wrong about it being federal legislation.
    He was wrong about the time period.
    He was wrong about the Court not having struck down major federal legislation since the New Deal era.

    So he was wrong about every single element, but somehow he was right?

    And the state/federal difference is not some minor distinction.

  • Pinky says:

    Has anyone put together a list of decisions that the average liberal supports where the Court struck down federal law? Roe, Griswold, and that Texas sodomy law were all cases where the Court overturned state law, yielding results that liberals wanted. I can’t think of any federal examples though.

  • Mike Petrik says:

    Pinky raises a very important point. Libs favor an expansive understanding of various “rights” hidden deep inside the creases of the constitution. Because these rights almost always serve to limit police powers and because police powers generally rest with the states, Libs tend to favor activist judges vis-a-vis state legislation. Because libs disfavor economic liberty and instead favor sweeping regulation of commerce, they support an expansive understanding of federal power via the commerce clause.

  • Student says:

    Wrong about the time period? The New Deal was from 1933 to 1936.
    Lochner v New York was from 1905.
    Obama said that it was pre-New Deal.

  • Pinky says:

    I just found a .pdf from the Government Printing Office listing Congressional acts that the Supreme Court overturned. Pretty interesting stuff. Congress keeps violating the commerce clause, and keeps getting called out for it. I also noticed that the Supreme Court really likes protecting obscenity and anything that can loosely be called free speech (such as flag burning).

  • T. Shaw says:

    What law cannot Congress pass that would not be legit by the lib interpretations of the “commerce clause”?

    Plus, Student’s right.

    Obama is never in error.

    Whatever he says is correct because it supports the agenda.

    For all such sons of Satan, the truth is that which serves their purposes.

    Obama is never wrong. He is ever lying.

  • Spambot3049 says:

    Has anyone put together a list of decisions that the average liberal supports where the Court struck down federal law?

    There was also United States v. Eichman where the Supreme Court struck down a federal statute against desecration of the US flag.
    http://en.wikipedia.org/wiki/United_States_v._Eichman

    Just to agree with Mike Petrik: when liberals fund expansive federal programs with tax dollars, it is difficult to show standing as a plantiff to bring suit.
    http://en.wikipedia.org/wiki/Standing_(law)#Taxpayer_standing

  • Tess S. says:

    Thanks Joe Green for listing many of Obama’s presidental actions to date. The list gives me pause on this Holy Saturday. The impulse to drop to my knees and implore God’s Mercy upon this nation whose leadership is so corrupt and the hearts of the citizens so ignorant and apathetic is great. Many are like sheep without a Shepherd; unable to recognize His Voice which beckons them to follow Truth and to receive life in abundance. Pontificating about the interior motives of the Presidents’ heart is speculation and generally a useless waste of energy.

  • Student says:

    I’m not law savvy…. but what is the big deal with the Commerce Clause and why do people feel that the courts should not strike down legislation when it pertains to the commerce clause? I get what commerce is, but what is it that makes it such a big deal for courts to strike down laws that fall under that banner of Commerce Clause.

    I’m liberal, but if Obamacare is wrong then it’s wrong. I’ve spoke to friends who are also liberal and I’ll ask “why is it wrong for the courts to strike down Obamacare?” and I just get the response “because it falls under the Commerce Clause”. Then I will ask “what about the Commerce Clause prevents legislation related to that clause from being stuck down by a court” and the response will be “Courts just shouldn’t do that.”

    It makes no flippin’ sense to me. Please help

  • Mike Petrik says:

    Student,
    Our constitution grants Congress only limited powers, and each law Congress enacts must come within the ambit of those powers. The constitution grants Congress to power to regulate commerce among the states. The question is whether Obamacare (particularly the mandate) comes within the ambit of that power or is outside it. If the former, then the legislation is within Congress’s power to enact and the Court should uphold it; if the latter, then the legislation is outside of Congress’s power and the Court should strike it down.

  • Student says:

    Thank you for that answer, Mike.

    So then if it would be the former the courts do indeed have no right to strike down that type of legislation.

  • Mike Petrik says:

    Yes, exactly. What the Court must do is discern whether the power to regulate commerce among the states inludes the power to require citizens to purchase health insurance. If it concludes that it does, then it should uphold the law. The question is not an easy one in my view. While the constitution does not generally limit *state* legislative powers outside the Bill of Rights (which is why the Massachusetts insurance mandate is almost certainly constititional), there must be a warrant for Congressional legislation. Congress’s commerce clause power has been construed broadly by federal courts, but it is not without limit. The idea that this power can be used to require each citizen to purchase a product he may not want would be almost certainly regarded as unthinkable by the Framers; yet, the language employed in the commerce clause seems broad on its face, and just because the Framers may not have intended to grant Congress such sweeping power does not mean that it did not do so nonetheless. Words can have meaning, and therefore effect, outside their intent. Nonetheless, critics have a powerful point in noting that such a power to compel an affirmative act dramatically alters our historic understanding between the relationship between our supposedly limited federal government and its individual citizens. While it is that alteration that supplies the disturbing subtext, the precise legal question many be more mundane, such as does the power to regulate interstate commerce include the power to require a person to engage in commerce who wishes not to. This is interesting stuff and reasonable people can come out differently in my view, though I realize that most of my fellow conservative commentators disagree with me on that.

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