"When they allow a talk show host to play them like a two-dollar banjo, they demonstrate what kind of backbone they'll bring to the job later on, if we elect them. After they get elected will they continue to allow Jeff Crank to put a nickel in them and wind them up every Saturday morning?"

Barry Noreen, former columnist, Colorado Springs Gazette

Friday, April 6, 2012

Federalism on Trial

There is more than a little irony in the fact that the Chief Executive of the federal government, and a man who once held a position lecturing on the constitution of that government, would hold its foundations in such obvious contempt. President Obama laid it out rather neatly last Monday when he threw a presidential hissy fit in the Rose Garden over the possibility of the Supreme Court doing its job.

The importance of the Supreme Court ruling on the Individual Mandate portion of the Affordable Care Act is difficult to overstate, and the President’s ill-thought-out remarks are at least partially indicative as to why. At issue is nothing less than the structural foundations of the United States. On a purely technical basis, the individual mandate changes, in a profound way, the relationship between the federal government and the individual. Proponents use a bizarrely latitudinarian interpretation of the Commerce clause to argue that it is lawful, but the fact is that at no point in American legal history has the federal government ever granted itself the authority to order an individual to engage in a specific economic activity, simply by virtue of existing within the borders of the US of A.

Most by now are fairly familiar with the chilling consequences should the SCOTUS find constitutional justification for the mandate; if this is allowed under the commerce clause, there is nothing that is not allowed under the commerce clause. As Justice Scalia pointed out, under this assumption the federal government could mandate the purchase of virtually anything deemed indispensable.

Ah, but there is precedent for this isn’t there? After all, didn’t the Militia Act of 1792 order individuals to purchase firearms? Yes, but that was done under the aegis of Congress’ power, as granted in Article I, to call forth, arm, and organize a militia. There is a world of difference between Congress doing something that the Constitution explicitly allows them to do, and that same Congress granting itself a right to do something. In certain esoteric circles, that’s called the Rule of Law.

And that is really the crux of the matter. Some liberals are wringing their hands in glee over the apparent hypocrisy of conservatives calling for the Supreme Court to overturn a legislative act, in light of the often-held position on the right against “activist” courts. They are, as usual, missing the point.

What makes a court “activist”, in the sense that conservatives find fundamentally offensive, is not that they overturn laws , it is in the manner in which they often justify doing so. When the Supreme Court (or any court, really,) manufactures a “right” that has no provenance in the Constitution, or finds itself engaging in legal gymnastics and circumlocutions to try and interpret the existing statutes in such a manner as to fit whatever position the individual justices wish to advance, then the line is crossed.

The court does have a legitimate role, however, to act as a check on legislatures that go beyond their own prescribed mandates. For instance, a radically populist Congress could conceivably enact a law banning, say, newspapers, in reaction to some highly charged issue of the day. The Supreme Court would be entirely proper in overturning such a law; this would not be a case of the judiciary creating law, but in fact upholding the law as spelled out in the First Amendment.

And so it is with the individual mandate portion of Obamacare. Striking down that law does not require the court to extrapolate some new right or power; it simply requires that they apply existing law and the constitution as it relates to the federal government.

President Obama, incredibly, does not seem to accept this. His performance on Monday, where he claimed that a court decision not in his favor would be “unprecedented” signaled that either he A) forgot that Marbury v. Madison (the 1803 Supreme Court case that set the precedent for judicial review) ever occurred, or that B) he believes that he and his vision for America transcend the legal and political structures that make up America. It is a level of hubris that is dangerous in a President, and that ought to be alarming.

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