After three days of arguments before the Supreme Court, the
Obama administration and its supporters have been found in
contempt. Not of the court, but of the Constitution.
Twenty-six states and the National Federation of Independent
Business challenged the constitutionality of President Obama’s
signature piece of domestic legislation, the Patient Protection and
Affordable Care Act. The sophistries on which the Obamaphiles
relied to defend their health care power grab were perhaps best
summarized by Slate legal columnist
Dahlia Lithwick: “That the law is constitutional is best
illustrated by the fact that — until recently — the Obama
administration expended almost no energy defending it.”
That lack of energy came back to haunt them Tuesday when
Solicitor General Donald Verrilli turned in a stammering, barely
coherent performance worthy of the public defender in
My Cousin Vinny as he struggled to articulate a
constitutional defense of Obamacare. The arguments went only slight
better for Verrilli yesterday. The administration seemed ill
prepared to answer even basic, predictable questions about the
law’s constitutional basis.
Like Nancy Pelosi, when pressed to square the federal
government’s actions with the Constitution, the Obama legal team
could only reply, “Are you serious?”
For at least five of the nine Supreme Court justices, the answer
appeared to be yes. Justice Anthony Kennedy, the key swing vote,
seemed skeptical of the commerce clause justification for the
individual mandate. He recognized that the mandate to purchase a
specific product fundamentally altered the citizen’s relationship
with her government, informed Verrilli that he had a “heavy burden”
of proof, and questioned whether the government could create
commerce in order to regulate it.
Justice Antonin Scalia, as is his wont, went even further. “One
way or another, Congress is going to have to reconsider this,”
Scalia said. “Why isn’t it better to have them reconsider it in
toto?” Even the liberal justices, who spent much of the oral
arguments trying to save Verrilli from himself, heaped scorn on the
Obama administration’s argument that the individual mandate is a
tax, except when it isn’t.
A major point of contention was that the government could
identify no principle that limited the powers it asserted. Why
can’t Washington compel people to eat broccoli, buy burial
insurance, or carry cell phones from which they could call 911?
There was no obvious answer, suggesting that the administration
sought to dress up a general police power — which the people who
wrote and ratified the Constitution explicitly denied the federal
government — in the language of the commerce clause.
Indeed, the issue goes far beyond health care. For decades,
members of the elected branch of the federal government have barely
pretended to adhere to the document to which they swear an oath.
They do not consult the Constitution when they seek to accomplish
their policy goals. They do not recognize its clear limits on their
power.
While liberals have been most comprehensive in their rejection
of enumerated powers, preferring instead to use the Constitution as
a battering ram against Christmas trees in the town square, this
constitutional amnesia has been a bipartisan affliction. It
manifested itself among the center-right policy wonks who toyed
with the individual mandate since the 1990s. It was seen in the
unchecked growth of government even when Republicans are in
power.
Even advocates of relatively activist government in the context
of the times believed that constitutional amendments were necessary
to prohibit such obvious economic activities as slavery and the
sale of alcoholic beverages. Defenders of the health care reform
law did not even bother to cite evidence that the people who
ratified the Constitution intended to delegate to the federal
government the powers the Obama administration claimed.
Instead you have Lithwick asserting that “all the conservative
longing for the good old days of the pre-New Deal courts won’t put
us back in those days as if by magic.” And New York Times
legal columnist Linda Greenhouse
mocking Paul Clement for calling the individual mandate
“unprecedented” in his legal brief (as if precedent has never been
considered in a court proceeding before). And the solicitor general
pleading for deference even as he cannot point to one enumerated
power that would validate his argument.
The American republic was founded on the idea that the federal
government possesses only the powers granted to it by a
supermajority of the people and the states. Ratification of the
Constitution and its amendments is the process by which that
supermajority gives its consent. This once-basic notion of
governance was relegated to the fringes. It is now returning to the
mainstream.
Obama’s solicitor general was caught flat-footed not because he
lacks legal skills. He is part of a political culture that has
never thought seriously about the Constitution, has never thought
that our masters in Washington need to beg the people for any
permission beyond their vote every two to six years, and has
regarded the doctrine of enumerated powers as a pre-New Deal relic.
The Washington conventional wisdom has long been rooted in
constitutional contempt.
Chief Justice John Roberts may yet be reluctant to overturn a
major act of Congress by a narrow 5 to 4 vote. Anthony Kennedy
could get out of bed tomorrow and decide that the individual
mandate is the greatest thing since
Roe v. Wade.
But no matter how the Court rules, the bedrock assumptions of
constitutionally limited government have returned to the mainstream
of American political discourse. The Constitution is back. If we
can keep it.
