Jeffrey A. Setaro

Political & Cultural Commentary from a Constitutional Conservative.

It’s Up To Us Now

By

Like many of you I’ve spent the last few days reading, re-reading and digesting the Supreme Court’s Obamacare ruling… If there’s a silver lining in it I can’t find it, the thing is a turd. John Roberts logic is so twisted it’s nearly incomprehensible, in short the only way the court — the only way John Roberts could justify upholding the Obamacare was to effectively rewrite the statute and throw the Constitution’s limits on Congress’s taxing authority under the bus.

I’m not going to spend a lot of time dissecting the ruling and pointing out its flaws, Mark Levin (audio here) and John Yoo have already done a far better job of that than I could anyway. Mr. Yoo’s Wall Street Journal OpEd is a must read:

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero. Some hope Sebelius covertly represents a “substantial victory,” in the words of conservative columnist George Will.

After all, the reasoning goes, Justice Roberts’s opinion declared that the Constitution’s Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

Some conservatives hope that Justice Roberts is pursuing a deeper political game. Charles Krauthammer, for one, calls his opinion “one of the great constitutional finesses of all time” by upholding the law on the narrowest grounds possible—thus doing the least damage to the Constitution—while turning aside the Democratic Party’s partisan attacks on the court.

The comparison here is to Marbury v. Madison (1803), where Chief Justice John Marshall deflected President Thomas Jefferson’s similar assault on judicial independence. Of the Federalist Party, which he had defeated in 1800, Jefferson declared: “They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of republicanism are to be beaten down and erased.” Jeffersonians in Congress responded by eliminating federal judgeships, and also by impeaching a lower court judge and a Supreme Court judge.

In Marbury, Justice Marshall struck down section 13 of the Judiciary Act of 1789, thus depriving his own court of the power to hear a case against Secretary of State James Madison. Marbury effectively declared that the court would not stand in the way of the new president or his congressional majorities. So Jefferson won a short-term political battle—but Justice Marshall won the war by securing for the Supreme Court the power to declare federal laws unconstitutional.

While some conservatives may think Justice Roberts was following in Justice Marshall’s giant footsteps, the more apt comparison is to the Republican Chief Justice Charles Evans Hughes. Hughes’s court struck down the centerpieces of President Franklin Roosevelt’s early New Deal because they extended the Commerce Clause power beyond interstate trade to intrastate manufacturing and production. Other decisions blocked Congress’s attempt to delegate its legislative powers to federal agencies.

FDR reacted furiously. He publicly declared: “We have been relegated to a horse-and-buggy definition of interstate commerce.” After winning a resounding landslide in the 1936 elections, he responded in February 1937 with the greatest attack on the courts in American history. His notorious court-packing plan proposed to add six new justices to the Supreme Court’s nine members, with the obvious aim of overturning the court’s opposition to the New Deal.

After the president’s plan was announced, Hughes and Justice Owen J. Roberts began to switch their positions. They would vote to uphold the National Labor Relations Act, minimum-wage and maximum-hour laws, and the rest of the New Deal.

But Hughes sacrificed fidelity to the Constitution’s original meaning in order to repel an attack on the court. Like Justice Roberts, Hughes blessed the modern welfare state’s expansive powers and unaccountable bureaucracies—the very foundations for ObamaCare.

For me the sole take away from Robert’s ruling is this one sentence:

“It is not our job to protect the people from the consequences of their political choices.”

While that’s true, it is not the courts job to protect the people from the consequences of their political choices. It is the court’s job to protect the Constitution and Chief Justice Roberts failed miserably in that regard.

Yes he ruled that ObamaCare’s individual mandate violated the Commerce Clause, and that’s a good thing, but he also found that the mandate falls within Congress’s power to tax, and that’s a bad thing. In short the Constitution places specific limits Congress’s taxing power, what the Chief Justice’s ruling does is effectively eviscerate those limits, thereby giving Congress almost limitless authority to tax.

In a practical sense what Roberts’ did was craft a restraint on federal power without any real restraint. And, worse still, he had to effectively rewrite the statute Congress passed in order to do it.

Alexander Hamilton explained importance of the courts in Federalist 78 (emphasis mine):

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Frankly, this ruling is every bit as awful as the law it upholds.

It’s up to us now… The only recourse we the people have left is at ballot box, in November we must elect a president and congress that will repeal Obamacare.

Unfortunately, we can’t undo the awful precedent set by the court’s ruling which greatly expands Congress’s taxing authority and as Mr. Yoo notes “provides a constitutional road map for architects of the next great expansion” we’re stuck with that. We can however elect representatives who will work to repeal Obama — it’s bad law, plain and simple.

Related