A Rasmussen poll taken July 11 showed a majority (53%) of likely voters want ObamaCare repealed. Since the law was passed in March 2010, weekly polls show the percentage of likely voters wanting it repealed has averaged 56%, ranging from a low of 50% to a high of 63%. In contrast, the percentage of voters opposed to repeal has averaged 39%, ranging from 32% to 44%.
In the almost 18 months since ObamaCare became law the much-ballyhooed claim that its popularity would rise after people understood it has failed to materialize. The 2010 elections swept out many of the Democrats in the House and Senate who voted for the law. But Republicans failed to win the Senate, and Obama remained in the White House making repeal of ObamaCare impossible until after the 2012 elections. ObamaCare is another unsustainable big government program like Social Security, Medicare, and Medicaid. Republicans are therefore planning their election campaigns as a referendum on Obama’s imperious makeover of American life with its intrusions and regulations, and ObamaCare will be Exhibit A in their argument.
However, even if Republicans win the Senate and White House and maintain their control of the House, the repeal of ObamaCare will not be easy. A simple majority in the Senate cannot pass legislation as can be done in the House. Republicans will need 60 votes to prevent filibusters, which they are unlikely to get. Moreover, it is harder to repeal a bad law than it is to prevent its passage. Unless voters scare Congress into action for repeal, the inclination in both houses will be to “fix” the most onerous parts of ObamaCare – which explains why so much of our laws and regulations are a crazy quilt of patches when starting over with a clean slate would have made more sense.
ObamaCare opponents have therefore hedged their bet on a legislative solution by turning to a judicial solution. This is an odd twist for the GOP, which is historically opposed to judicial activism and prefers to let Congress rather than the courts set the rules we live by. The well-known argument for a judicial solution, however, is that Congress overstepped its constitutional limits in passing ObamaCare with a mandate that requires every citizen to buy a product – insurance in this case – and if Congress has the power to compel Americans to buy insurance then there is no limit on what other things future rogue Congresses can force citizens to do or not do.
In pursuit of a judicial solution to ObamaCare, the Attorneys General for 27 states and organizations like the Thomas More Law Center have filed suits challenging the constitutionality of the mandate. Four district court judges have heard the arguments and two of them, liberals, decided the mandate was constitutional while the other two, conservatives, decided it wasn’t.
All of the district court cases have moved up to the appellate courts. Two of the three judges chosen to hear the appeal for the Sixth Circuit were nominated by Republican presidents, whereas Democrat presidents nominated two of the three chosen to hear for the Fourth Circuit and all three chosen for the Eleventh Circuit.
Notwithstanding its 2 to 1 Republican advantage, the Sixth Circuit appellate court ruled last month in favor of the mandate. The surprising switch-over was Judge Jeffrey Sutton, who clerked for Justice Antonin Scalia and was nominated to the bench by George W. Bush. Anyone longing for a migraine headache can Google his tortured opinion. In it Sutton muses and opines as thoughts spin like pirouettes from his brain to his pen, finally concluding with this verbal rim shot:
No debate in the forty years after the country’s birth stirred the people more than the conflict between the federalists and anti-federalists over the role of the National Government in relation to the States. And no issue was more bound up in that debate than the wisdom of creating a national bank. In upholding the constitutionality of a second national bank, not a foregone conclusion, the Supreme Court erred on the side of allowing the political branches to resolve the conflict. Right or wrong, that decision presented the challengers with a short-term loss (by upholding the bank) and set the platform for a potential long-term victory (by allowing them to argue that Congress should not make the same mistake again). There was no third national bank....
Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.
In other words, if you think a law is bad, the place to correct it is the ballot box, not the courthouse.
Judge Sutton’s opinion and indeed the Sixth Circuit outcome shows how unpredictable a judicial solution can be, even by conservative justices. There is no doubt that all of these cases are headed to the Supreme Court where – conventional wisdom holds – the four liberal justices (Ginsberg, Breyer, Sotomayor, and Kagan) will line up solidly for the mandate, the four conservative justices (Scalia, Thomas, Roberts, and Alito) will be just as solidly against the constitutionality of the mandate, and Justice Kennedy the Swing Vote Guy will decide the outcome as if the other eight were superfluous.
This “wisdom” is wrong for at least two reasons. First, it implies that Kennedy is the only thoughtful justice on the Court. Second, it assumes the conservatism of the Court’s conservative wing is homogenous, which it isn’t. Thomas tends to be an originalist or strict constructionist in his decisions, whereas Scalia, Roberts, and Alito tend toward judicial restraint even when congressional acts conflict with an originalist interpretation of the Constitution. While Thomas may be considered a likely vote against the mandate, the votes of the other conservatives can’t be predicted – just as Sutton’s.
The argument posed by the defenders of the ObamaCare mandate bifurcated early after it was attacked in court – vacillating between the right of Congress under Article I, Section 8 “To lay and impose taxes …” and “To regulate Commerce with foreign Nations, and among the several States …” Well, which is it? Is the mandate a tax or is it regulation of commerce?
Section 1501 of the ObamaCare bill did not create a tax. That section calls the $750 levy a "penalty." The defenders of the mandate, therefore, decided early on that the tax dog wouldn’t hunt and stopped building a legal defense around the congressional taxing power in Section 8.
I discussed at length Section 8’s third enumerated power in my January 8, 2011 blog, Our Amazingly Elastic Commerce Clause. Since health insurance is a modern contrivance, it’s not surprising to find its regulation absent in the list of powers granted to Congress 225 years ago. But as my previous blog noted, the Supreme and Appellate Courts have through the years allowed Congress to transgress its enumerated powers with such hair-splitting Pharisaical interpretations of the Commerce Clause that it’s a wonder the Justices could do it with a straight face. How they might argue favorably for the individual mandate will be no less creative, I’m certain.
One hopes the Court will confront these questions. How could the Commerce Clause possibly be interpreted to allow Congress to force free people against their will to buy a product or face punishment? And if the Court concurs that Congress has that right, was there any reason, then, for the Founders to list in writing the limited powers granted to Congress under Article 8, since an elastic interpretation of the Commerce Clause lets it do anything? Finally, why did the Founders deem it necessary to state in the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”?
An understanding of the rationale behind the Commerce Clause at the time of its writing to is needed to reason how its regulatory principle would apply to a modern society. (See Commerce Clause blog.) It’s clear in the historical context prior to the Constitution that the Founders gave Congress, rather than the states, the power in order that commerce could flow between the states. There was no intent to give Congress the power to regulate commerce within a state.
Thus Article 8 grants that Congress may regulate what is traded (commerce) and how it is traded (regulate) across state lines (between the several states).
Health insurance is not bought or sold across state lines. Moreover, “commerce” implies there is a willing buyer and willing seller. If the buyer isn’t willing and is forced to buy under protest, is that really commerce? And does it need regulation or police power enforcement?
Pesky thing, this Constitution! But ah! … not to worry. The New Deal Supremes found a way to get around these bothersome limitations 75 years ago by using the “necessary and proper” clause in Section 8 as an excuse for regulating nettlesome local conditions that impede federal power expansion. Here’s how this bit of judicial black magic works.
The last of the 18 enumerated powers in Section 8 grants to Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers …”
Liberal constitutional exegetes on the Court have interpreted this clause in a way that gives cover to Congress when it claims the power to regulate intrastate commerce in violation of the Tenth Amendment and the principles of federalism. When intrastate activities “substantially affect” interstate commerce, Congress can elbow its way into the affairs of a sovereign state. One need only show “substantial affect” and the federal government supplants state government – or so the Court says.
How substantial is “substantial”?
In the infamous Wickard v. Filburn Farmer Filburn, planted and harvested more wheat than President Roosevelt’s overreaching New Deal Agricultural Adjustment Act of 1938 allowed. Roosevelt wanted to override free markets and drive up the price of wheat during the depression. When his transgression was discovered, Farmer Filburn was fined. He claimed he raised the excess wheat to feed to his livestock, not to sell – a fact not disputed by the federal government. Thinking he had the rights of a free citizen to grow grain to feed his chickens and cows, Filburn appealed to Roosevelt’s Supreme Court. Bad mistake. The Court told Farmer Filburn that if he hadn’t grown his surplus feed grain, he would have had to buy grain on the market to feed his animals. And if every farmer did what Farmer Filburn had done, why, the demand and the price for wheat would go down! There was no proof that a nationwide black market in feed grain existed, nevertheless Farmer Filburn stood guilty as charged because his actions could have had “substantial affect” on the government’s regulation of interstate wheat sales – even though they didn’t.
Don’t laugh. It really did happen. Google it for yourself.
“Substantial affect” was the basis of an equally infamous case – United States v. Wrightwood Dairy. The owners of the dairy held the benighted view that the powers of the federal government were limited and therefore argued that Roosevelt’s Agricultural Marketing Agreement Act did not apply to their commerce since its buying and selling activity was wholly within the state of Illinois. Roosevelt’s Marketing Act was another thinly-veiled interference in a free market by the federal government in order to prevent milk from becoming too expensive when bought and sold across state lines. Roosevelt’s Court rejected Wrightwood’s defense and deferred to the government’s argument that Congress had the power to regulate "the marketing of intrastate milk which competes with that shipped interstate [and] would tend seriously to break down price regulation of the latter." The Court argued that "Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce," therefore the necessary and proper clause gave it "every power needed to make that regulation effective" when intrastate sales had a “substantial affect.”
Hard to believe, isn’t it?
These two decisions show how intrusive the creative interpretations of the Constitution by the courts can be.
There is little doubt how the liberal wing of the Court will decide the ObamaCare case. Their Dean, Justice Breyer, holds to a narrow interpretation of many constitutionally protected liberties. He claims belief in self-government, but his opinions are contemptuous of its most basic right: the right of individuals to manage their own lives without excessive government interference. Justice Ginsburg’s decisions reveal a mistrust of the relevance of a 225 year-old document in governing a modern society. Four of Justice Sotomayor’s six opinions, which she wrote for the majority when she was an appellate judge, were overturned on appeal, making one wonder if she is judging by the same constitutional document used at the Supreme Court. Justice Kagan has yet to show that she is undeserving of the appellation, “airhead.”
In contrast, it’s hard to predict how the conservative wing of the Court will decide. Justice Thomas, as mentioned, is an originalist. He will, therefore, skip over lots of precedent case law and interpret the constitutionality of the mandate by reasoning the Founder’s use of the terms “commerce,” “regulate,” and “between the states.” Justice Scalia is a toss-up. In some cases original intent appeals to him. But more often Scalia defers to judicial restraint, respecting legislated political solutions and respecting precedent case law – that hateful principle of stare decisis. Justice Alito and Chief Justice Roberts avoid activism and are swayed from originalism when hair-splitting distinctions involve political discretion. Both made this interpretative philosophy clear in their confirmation hearings.
Unless there is an egregious constitutional violation, Scalia, Roberts, and Alito are loath to substitute their judgment for the judgment of Congress on matters of policy; but who knows, they may see the mandate as more than a political policy.
Yet even if the four Court conservatives vote against the mandate, the deciding vote will be cast by Justice Kennedy. In his book Justice Kennedy’s Jurisprudence author Frank Colucci notes that Kennedy has voted with the majority more than any of his colleagues. He voted with the majority in Rowe v. Wade, but he wrote the majority opinion upholding the federal Partial Birth Abortion Ban Act. He votes like a Libertarian but denies that he is one. He is neither an originalist nor a believer in judicial restraint. His reading of the Constitution is moralistic, giving precedence to individual liberty and human dignity, rather than democratic principles.
Judge Sutton’s tortured opinion may therefore prove to be the best advice: if you don’t like a law, head to the ballot box not the courthouse. Conservative’s abhorrence of judicial activism, after all, can’t have it both ways. Conservatives can’t rail at liberal judicial activism and plead for conservative judicial activism. Hamilton’s Federalist 78 argued passionately for judicial review of “legislative encroachments” but also argued that of the three branches of government, the judiciary "will always be the least dangerous to the political rights of the Constitution." Conservatives must insist that it remain so.
Judge Sutton’s opinion recalled that the debate over a national bank was ultimately resolved by an elected official – President Jackson. The Supreme Court found the bank constitutionally necessary and proper in an 1819 decision. But Jackson said he would give the Court’s opinion "only such influence as the force of their reasoning may deserve." Then he applied his standard of “necessary” and “proper” and vetoed the reauthorization of the bank in 1832.
The Supreme Court has refused to fast track the mandate cases around the appellate courts. Whether it will wait for all four appellate decisions is unclear, but it’s unlikely that the case will be heard before the 2012 presidential election. A ruling against the constitutionality of ObamaCare would be a disaster for Obama’s reelection hopes and Chief Justice Roberts will avoid that possibility.
However, before the Court has its say, the electorate will have spoken in 2012. Let’s hope that this time voters have learned that elections have consequences.
In the almost 18 months since ObamaCare became law the much-ballyhooed claim that its popularity would rise after people understood it has failed to materialize. The 2010 elections swept out many of the Democrats in the House and Senate who voted for the law. But Republicans failed to win the Senate, and Obama remained in the White House making repeal of ObamaCare impossible until after the 2012 elections. ObamaCare is another unsustainable big government program like Social Security, Medicare, and Medicaid. Republicans are therefore planning their election campaigns as a referendum on Obama’s imperious makeover of American life with its intrusions and regulations, and ObamaCare will be Exhibit A in their argument.
However, even if Republicans win the Senate and White House and maintain their control of the House, the repeal of ObamaCare will not be easy. A simple majority in the Senate cannot pass legislation as can be done in the House. Republicans will need 60 votes to prevent filibusters, which they are unlikely to get. Moreover, it is harder to repeal a bad law than it is to prevent its passage. Unless voters scare Congress into action for repeal, the inclination in both houses will be to “fix” the most onerous parts of ObamaCare – which explains why so much of our laws and regulations are a crazy quilt of patches when starting over with a clean slate would have made more sense.
ObamaCare opponents have therefore hedged their bet on a legislative solution by turning to a judicial solution. This is an odd twist for the GOP, which is historically opposed to judicial activism and prefers to let Congress rather than the courts set the rules we live by. The well-known argument for a judicial solution, however, is that Congress overstepped its constitutional limits in passing ObamaCare with a mandate that requires every citizen to buy a product – insurance in this case – and if Congress has the power to compel Americans to buy insurance then there is no limit on what other things future rogue Congresses can force citizens to do or not do.
In pursuit of a judicial solution to ObamaCare, the Attorneys General for 27 states and organizations like the Thomas More Law Center have filed suits challenging the constitutionality of the mandate. Four district court judges have heard the arguments and two of them, liberals, decided the mandate was constitutional while the other two, conservatives, decided it wasn’t.
All of the district court cases have moved up to the appellate courts. Two of the three judges chosen to hear the appeal for the Sixth Circuit were nominated by Republican presidents, whereas Democrat presidents nominated two of the three chosen to hear for the Fourth Circuit and all three chosen for the Eleventh Circuit.
Notwithstanding its 2 to 1 Republican advantage, the Sixth Circuit appellate court ruled last month in favor of the mandate. The surprising switch-over was Judge Jeffrey Sutton, who clerked for Justice Antonin Scalia and was nominated to the bench by George W. Bush. Anyone longing for a migraine headache can Google his tortured opinion. In it Sutton muses and opines as thoughts spin like pirouettes from his brain to his pen, finally concluding with this verbal rim shot:
No debate in the forty years after the country’s birth stirred the people more than the conflict between the federalists and anti-federalists over the role of the National Government in relation to the States. And no issue was more bound up in that debate than the wisdom of creating a national bank. In upholding the constitutionality of a second national bank, not a foregone conclusion, the Supreme Court erred on the side of allowing the political branches to resolve the conflict. Right or wrong, that decision presented the challengers with a short-term loss (by upholding the bank) and set the platform for a potential long-term victory (by allowing them to argue that Congress should not make the same mistake again). There was no third national bank....
Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.
In other words, if you think a law is bad, the place to correct it is the ballot box, not the courthouse.
Judge Sutton’s opinion and indeed the Sixth Circuit outcome shows how unpredictable a judicial solution can be, even by conservative justices. There is no doubt that all of these cases are headed to the Supreme Court where – conventional wisdom holds – the four liberal justices (Ginsberg, Breyer, Sotomayor, and Kagan) will line up solidly for the mandate, the four conservative justices (Scalia, Thomas, Roberts, and Alito) will be just as solidly against the constitutionality of the mandate, and Justice Kennedy the Swing Vote Guy will decide the outcome as if the other eight were superfluous.
This “wisdom” is wrong for at least two reasons. First, it implies that Kennedy is the only thoughtful justice on the Court. Second, it assumes the conservatism of the Court’s conservative wing is homogenous, which it isn’t. Thomas tends to be an originalist or strict constructionist in his decisions, whereas Scalia, Roberts, and Alito tend toward judicial restraint even when congressional acts conflict with an originalist interpretation of the Constitution. While Thomas may be considered a likely vote against the mandate, the votes of the other conservatives can’t be predicted – just as Sutton’s.
The argument posed by the defenders of the ObamaCare mandate bifurcated early after it was attacked in court – vacillating between the right of Congress under Article I, Section 8 “To lay and impose taxes …” and “To regulate Commerce with foreign Nations, and among the several States …” Well, which is it? Is the mandate a tax or is it regulation of commerce?
Section 1501 of the ObamaCare bill did not create a tax. That section calls the $750 levy a "penalty." The defenders of the mandate, therefore, decided early on that the tax dog wouldn’t hunt and stopped building a legal defense around the congressional taxing power in Section 8.
I discussed at length Section 8’s third enumerated power in my January 8, 2011 blog, Our Amazingly Elastic Commerce Clause. Since health insurance is a modern contrivance, it’s not surprising to find its regulation absent in the list of powers granted to Congress 225 years ago. But as my previous blog noted, the Supreme and Appellate Courts have through the years allowed Congress to transgress its enumerated powers with such hair-splitting Pharisaical interpretations of the Commerce Clause that it’s a wonder the Justices could do it with a straight face. How they might argue favorably for the individual mandate will be no less creative, I’m certain.
One hopes the Court will confront these questions. How could the Commerce Clause possibly be interpreted to allow Congress to force free people against their will to buy a product or face punishment? And if the Court concurs that Congress has that right, was there any reason, then, for the Founders to list in writing the limited powers granted to Congress under Article 8, since an elastic interpretation of the Commerce Clause lets it do anything? Finally, why did the Founders deem it necessary to state in the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”?
An understanding of the rationale behind the Commerce Clause at the time of its writing to is needed to reason how its regulatory principle would apply to a modern society. (See Commerce Clause blog.) It’s clear in the historical context prior to the Constitution that the Founders gave Congress, rather than the states, the power in order that commerce could flow between the states. There was no intent to give Congress the power to regulate commerce within a state.
Thus Article 8 grants that Congress may regulate what is traded (commerce) and how it is traded (regulate) across state lines (between the several states).
Health insurance is not bought or sold across state lines. Moreover, “commerce” implies there is a willing buyer and willing seller. If the buyer isn’t willing and is forced to buy under protest, is that really commerce? And does it need regulation or police power enforcement?
Pesky thing, this Constitution! But ah! … not to worry. The New Deal Supremes found a way to get around these bothersome limitations 75 years ago by using the “necessary and proper” clause in Section 8 as an excuse for regulating nettlesome local conditions that impede federal power expansion. Here’s how this bit of judicial black magic works.
The last of the 18 enumerated powers in Section 8 grants to Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers …”
Liberal constitutional exegetes on the Court have interpreted this clause in a way that gives cover to Congress when it claims the power to regulate intrastate commerce in violation of the Tenth Amendment and the principles of federalism. When intrastate activities “substantially affect” interstate commerce, Congress can elbow its way into the affairs of a sovereign state. One need only show “substantial affect” and the federal government supplants state government – or so the Court says.
How substantial is “substantial”?
In the infamous Wickard v. Filburn Farmer Filburn, planted and harvested more wheat than President Roosevelt’s overreaching New Deal Agricultural Adjustment Act of 1938 allowed. Roosevelt wanted to override free markets and drive up the price of wheat during the depression. When his transgression was discovered, Farmer Filburn was fined. He claimed he raised the excess wheat to feed to his livestock, not to sell – a fact not disputed by the federal government. Thinking he had the rights of a free citizen to grow grain to feed his chickens and cows, Filburn appealed to Roosevelt’s Supreme Court. Bad mistake. The Court told Farmer Filburn that if he hadn’t grown his surplus feed grain, he would have had to buy grain on the market to feed his animals. And if every farmer did what Farmer Filburn had done, why, the demand and the price for wheat would go down! There was no proof that a nationwide black market in feed grain existed, nevertheless Farmer Filburn stood guilty as charged because his actions could have had “substantial affect” on the government’s regulation of interstate wheat sales – even though they didn’t.
Don’t laugh. It really did happen. Google it for yourself.
“Substantial affect” was the basis of an equally infamous case – United States v. Wrightwood Dairy. The owners of the dairy held the benighted view that the powers of the federal government were limited and therefore argued that Roosevelt’s Agricultural Marketing Agreement Act did not apply to their commerce since its buying and selling activity was wholly within the state of Illinois. Roosevelt’s Marketing Act was another thinly-veiled interference in a free market by the federal government in order to prevent milk from becoming too expensive when bought and sold across state lines. Roosevelt’s Court rejected Wrightwood’s defense and deferred to the government’s argument that Congress had the power to regulate "the marketing of intrastate milk which competes with that shipped interstate [and] would tend seriously to break down price regulation of the latter." The Court argued that "Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce," therefore the necessary and proper clause gave it "every power needed to make that regulation effective" when intrastate sales had a “substantial affect.”
Hard to believe, isn’t it?
These two decisions show how intrusive the creative interpretations of the Constitution by the courts can be.
There is little doubt how the liberal wing of the Court will decide the ObamaCare case. Their Dean, Justice Breyer, holds to a narrow interpretation of many constitutionally protected liberties. He claims belief in self-government, but his opinions are contemptuous of its most basic right: the right of individuals to manage their own lives without excessive government interference. Justice Ginsburg’s decisions reveal a mistrust of the relevance of a 225 year-old document in governing a modern society. Four of Justice Sotomayor’s six opinions, which she wrote for the majority when she was an appellate judge, were overturned on appeal, making one wonder if she is judging by the same constitutional document used at the Supreme Court. Justice Kagan has yet to show that she is undeserving of the appellation, “airhead.”
In contrast, it’s hard to predict how the conservative wing of the Court will decide. Justice Thomas, as mentioned, is an originalist. He will, therefore, skip over lots of precedent case law and interpret the constitutionality of the mandate by reasoning the Founder’s use of the terms “commerce,” “regulate,” and “between the states.” Justice Scalia is a toss-up. In some cases original intent appeals to him. But more often Scalia defers to judicial restraint, respecting legislated political solutions and respecting precedent case law – that hateful principle of stare decisis. Justice Alito and Chief Justice Roberts avoid activism and are swayed from originalism when hair-splitting distinctions involve political discretion. Both made this interpretative philosophy clear in their confirmation hearings.
Unless there is an egregious constitutional violation, Scalia, Roberts, and Alito are loath to substitute their judgment for the judgment of Congress on matters of policy; but who knows, they may see the mandate as more than a political policy.
Yet even if the four Court conservatives vote against the mandate, the deciding vote will be cast by Justice Kennedy. In his book Justice Kennedy’s Jurisprudence author Frank Colucci notes that Kennedy has voted with the majority more than any of his colleagues. He voted with the majority in Rowe v. Wade, but he wrote the majority opinion upholding the federal Partial Birth Abortion Ban Act. He votes like a Libertarian but denies that he is one. He is neither an originalist nor a believer in judicial restraint. His reading of the Constitution is moralistic, giving precedence to individual liberty and human dignity, rather than democratic principles.
Judge Sutton’s tortured opinion may therefore prove to be the best advice: if you don’t like a law, head to the ballot box not the courthouse. Conservative’s abhorrence of judicial activism, after all, can’t have it both ways. Conservatives can’t rail at liberal judicial activism and plead for conservative judicial activism. Hamilton’s Federalist 78 argued passionately for judicial review of “legislative encroachments” but also argued that of the three branches of government, the judiciary "will always be the least dangerous to the political rights of the Constitution." Conservatives must insist that it remain so.
Judge Sutton’s opinion recalled that the debate over a national bank was ultimately resolved by an elected official – President Jackson. The Supreme Court found the bank constitutionally necessary and proper in an 1819 decision. But Jackson said he would give the Court’s opinion "only such influence as the force of their reasoning may deserve." Then he applied his standard of “necessary” and “proper” and vetoed the reauthorization of the bank in 1832.
The Supreme Court has refused to fast track the mandate cases around the appellate courts. Whether it will wait for all four appellate decisions is unclear, but it’s unlikely that the case will be heard before the 2012 presidential election. A ruling against the constitutionality of ObamaCare would be a disaster for Obama’s reelection hopes and Chief Justice Roberts will avoid that possibility.
However, before the Court has its say, the electorate will have spoken in 2012. Let’s hope that this time voters have learned that elections have consequences.
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