Feature
The Wages of Crying ‘Restraint’
How John Roberts ended up as America’s Big Chief.
(Page 2 of 3)
The Rehnquist Court was harshly condemned by the left as engaging in “conservative judicial activism,” a charge designed to wound conservatives, as well as hold them up as hypocrites. (Never mind that progressives were happy to invalidate laws.) The cries from the left became even more shrill when, in the 2000 case of U.S. v. Morrison, the Rehnquist Court invalidated the Violence Against Women Act’s creation of a federal civil cause of action for “gender-motivated violence.” The 5 to 4 decisions in Lopez and Morrison, liberals cried, threatened to undo the New Deal and return us to the bad old days of the Nine Old Men.
Nonsense. The Rehnquist Court continued to operate within what some have called the “New Deal settlement,” but it offered a new and different interpretation of the terms of that understanding. Ninety- nine percent of law professors taught that the New Deal established an unlimited power of Congress to regulate the national economy, or anything that affects the national economy—which is anything— provided that Congress did not violate the express constraints imposed by such provisions as the First Amendment or the Equal Protection and Due Process Clauses. For them, the enumerated powers scheme of Article I provided no such judicially enforceable limits.
But the New Deal and Warren Courts had never actually said all this. Indeed, when faced with the prospect of explicitly allowing Congress the plenary power to regulate any economic matter in Wickard v. Filburn (1942), the New Deal justices blinked. Instead, they issued an opinion allowing Congress to reach so far as to restrict the amount of wheat a farmer could grow to feed his own livestock, but still insisting that there were limits beyond which Congress could not go. The Rehnquist Court conservatives simply followed this lead.
Metaphorically speaking, rather than interpret the New Deal jurisprudence as giving Congress a blank check, the Rehnquist Court conservatives interpreted it instead as establishing a high-water mark of federal power. Any congressional power that the New Deal and Warren Courts had upheld to date was still kosher. But if Congress stepped beyond these powers, it would face a burden of justification, lest its powers be construed as unlimited.
Just as lower courts began to act on this understanding, however, the Court decided Gonzales v. Raich, a case in which I represented Angel Raich and Diane Monson, who challenged whether the federal Controlled Substances Act could be constitutionally applied to marijuana grown at home for their own medical use as authorized by state law. Justices Scalia and Kennedy crossed over to join the four liberal dissenters in Lopez and Morrison to hold that Congress could reach this seemingly local and noneconomic activity.
Writing for the majority, Justice Stevens purported to stay within the confines of Lopez and Morrison by using a 1966 Webster’s Dictionary definition of “economic” that included the production of commodities. Therefore, Angel and Diane’s activities were economic in nature. But it was considered The Rehnquist Court was harshly condemned by the left as engaging in “conservative judicial activism,” a charge designed to wound conservatives, as well as hold them up as hypocrites. (Never mind that progressives were happy to invalidate laws.) The cries from the left became even more shrill when, in the 2000 case of U. S. v. Morrison, the Rehnquist Court invalidated the Violence Against Women Act’s creation of a federal civil cause of action for “gender-motivated violence.” The 5 to 4 decisions in Lopez and Morrison, liberals cried, threatened to undo the New Deal and return us to the bad old days of the Nine Old Men.
Nonsense. The Rehnquist Court continued to operate within what some have called the “New Deal settlement,” but it offered a new and different interpretation of the terms of that understanding. Ninety- nine percent of law professors taught that the New Deal established an unlimited power of Congress to regulate the national economy, or anything that affects the national economy—which is anything— provided that Congress did not violate the express constraints imposed by such provisions as the First Amendment or the Equal Protection and Due Process Clauses. For them, the enumerated powers scheme of Article I provided no such judicially enforceable limits.
But the New Deal and Warren Courts had never actually said all this. Indeed, when faced with the prospect of explicitly allowing Congress the plenary power to regulate any economic matter in Wickard v. Filburn (1942), the New Deal justices blinked.Instead, they issued an opinion allowing Congress to reach so far as to restrict the amount of wheat a farmer could grow to feed his own livestock, but still insisting that there were limits beyond which Congress could not go. The Rehnquist Court conservatives simply followed this lead.
Metaphorically speaking, rather than interpret the New Deal jurisprudence as giving Congress a blank check, the Rehnquist Court conservatives interpreted it instead as establishing a high-water mark of federal power. Any congressional power that the New Deal and Warren Courts had upheld to date was still kosher. But if Congress stepped beyond these powers, it would face a burden of justification, lest its powers be construed as unlimited.
Just as lower courts began to act on this understanding, however, the Court decided Gonzales v. Raich, a case in which I represented Angel Raich and Diane Monson, who challenged whether the federal Controlled Substances Act could be constitutionally applied to marijuana grown at home for their own medical use as authorized by state law. Justices Scalia and Kennedy crossed over to join the four liberal dissenters in Lopez and Morrison to hold that Congress could reach this seemingly local and noneconomic activity.
Writing for the majority, Justice Stevens purported to stay within the confines of Lopez and Morrison by using a 1966 Webster’s Dictionary definition of “economic” that included the production of commodities.Therefore, Angel and Diane’s activities were economic in nature. But it was considered Highly significant that, in his concurring opinion, Justice Scalia asserted that the Court should defer to Congress’s assertion that regulating even local noneconomic activity was “essential” to its comprehensive regulation of interstate commerce.
With Chief Justice Rehnquist and Justices O’Connor and Thomas now in the minority, it looked like the demise of New Federalism. After Raich, and the replacement of two of the Raich dissenters with Justices Roberts and Alito, the law professors reverted to their original position: They had been right all along. Congress did have a plenary power to regulate the national economy or any activity it deemed to be related thereto. The New Federalism of the Rehnquist Court had been a blip. Lopez and Morrison at best were merely a symbolic limit on congressional power. So long as Congress regulated broadly enough, there was no activity it could not reach.
ENTER THE PATIENT PROTECTION and Affordable Care Act (ACA) of 2010. Clearly this was a “comprehensive” scheme of economic regulation.Clearly the mandate requiring every American to purchase health insurance was a “rational” means to execute this scheme, and was indeed “essential” to its operation. Clearly, then, this was an entirely constitutional exercise of congressional power. So said 99 percent of all law professors, who characterized any claim to the contrary as “frivolous.” As they had cried after Lopez, a decision to invalidate the ACA would be a radical departure from precedent and represent a return to the bad old days before the New Deal.
But the challengers to the Affordable Care Act insisted that the individual insurance mandate was an “unprecedented” exercise of federal power, which in truth it was. Never before had Congress compelled Americans to engage in economic activity so as to regulate it. Because it was unprecedented, it went beyond the powers that had been upheld by the New Deal and Warren Courts. As a case of first impression, no existing legal precedent need be reversed, and no other existing statute was called into question. Moreover, the rationale used by the government to justify this power would, if accepted, authorize a general federal police power, which would repudiate the first principle that the federal government was one of limited and enumerated powers. In this respect, a decision invalidating the individual mandate would have been a very limited constitutional ruling, but it would have avoided a constitutional catastrophe by preserving the scheme of limited, enumerated congressional powers.
In sum, the challengers asserted the Rehnquist Court’s understanding of the New Deal as the highwater mark of federal power beyond which any claim of a new power needed to be justified. The defenders of the law were unable to present any credible limiting principle on the exercise of this new power. And it did not hurt that the Affordable Care Act was a very unpopular law, made even more unpopular by the public perception that the individual insurance mandate was unconstitutional.
Letter to the Editor View all comments (30) | Leave a comment
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aware| 9.28.12 @ 6:36AM
"As president, Mitt will nominate judges in the mold of Chief Justice Roberts..."
Pasted directly from mittromney.com
I just love when the stupid Statists are hoisted on their own petard.
PCPSmokerII| 9.28.12 @ 10:01PM
Time to leave that shit behind, you worthless punk. If Obama wins, because of assholes like you, we'll get more Elena Kagans. Wake the fuck up, Ron Paul kook.
aware| 9.29.12 @ 7:10AM
Leave it behind? Maybe you should tell your "champion", he's the one saying it. You just can't face the horrible reality that the worst days of your life are just about on you. And you deserve it along with the rest of the Americanus Boobus.
Surely you smart "conservatives" can manage to drag your banker stooge over the finish line without us "kooks". After all, you're always claiming to be the "majority". Prove it.
I woke up about 10 years ago when I realized both Democrats and Republicans are all part of the same criminal gang, and that "elections" have absolutely no chance of changing that.
But be my guest, keep trying the same old thing and expecting different results.
PCPSmokerII| 9.30.12 @ 3:09PM
No conservative, no liberty loving libertarian, no one who is not a leftist would ever refer to a candidate as a "banker stooge."
America's worst days are ahead, I see that very clearly. But with kooks and shit like you the job just went from hard to impossible.
aware| 10.1.12 @ 6:26AM
You obviously don't know who actually runs this nation. You think a President, any President, has control over the economy? You still believe in "We the People" after TARP? After QE infinity? After years of ZIRP?
Yes the worst is yet to come, no matter election outcomes, but you have wasted a few years already by not educating yourself as to how and why. You are enmeshed in the false paradigm of Left/Right but why did the "Right" expand the Welfare State under Bush and the "Left" expand the Police State under Obama? What is your explanation for this?
Don't you even notice that no matter which "side" wins the grip on your throat tightens? Or that the explosive growth of the Leviathan has been unhindered for a hundred years?
Yet you still play the game controlled by a Shadow Elite with outcomes predetermined? Always "hoping" that the next election will make a difference even as the last one didn't? You can't face the fact that you are powerless against wickedness in high places.
Aristocat| 9.29.12 @ 6:12AM
"So, perhaps Conservatives did make a tactical mistake in not pointing out the real issue - Federal Supremecy at the expense of Constitutional Federalism. But, that doesn't get Roberts and the Progressives off the hook."
Yes, just so...It was a big mistake to focus on the mandate...the entire law was unconstitutional for many reasons....
Roberts will go down in history as a coward and a traitor...He took an oath to uphold the Constitution, not to please the NY Times...
Shame on you Roberts, you pathetic coward.
Martin kzovich| 9.28.12 @ 7:17AM
So in essence all the Left has to do is bark and Jophnny Baby jumps. How pathetic is that ?
Alej| 9.28.12 @ 9:02AM
"...Supreme Court could only muster four votes to invalidate a law that five justices had concluded exceeded the enumerated powers of Congress, because the fifth vote buckled under the self-imposed duty of judicial restraint. "
The fifth buckled by virtue of a telephone call from the Oval Office.
TLP| 9.28.12 @ 10:29AM
The Contest is at Mr. Purple's House.
Who Knows?| 9.28.12 @ 10:30AM
Who decides where each justice sits or stands in those pictures of the nine lawyers, called the SCOTUS?
The Chief?
Indy| 9.28.12 @ 11:00AM
So much for calling balls and strikes...
JP| 9.28.12 @ 11:11AM
I think Mr. Barnett confuses judicial restraint with federal restraint. For, beginning with FDR almost all SCOTUS opinion's expanded the reach of the federal government. Whether the Court used "penumbras" to remove federal constraints, or endorsed the growth of federal powers, the results were the same - increased federal power at the expense of the states and individuals. In some exceptions, usually those dealing with "expression" (ie porn), the Courts were Libertarians. But, even in those cases, the Courts made clear the supremecy of the federal government over all others. The Federal Judiciary, when it does defer to Congress, does so at the expense of the local and state governments and individuals. It rarely, if ever, does the opposite.
Robert's in no way showed restraint, as he gave Congress the right to force individuals into commerce in order to meet illusuory demands of "general welfare". And Roberts knows has well as anyone that "the people" didn't want ObamaCare; but Progressives did.
So, perhaps Conservatives did make a tactical mistake in not pointing out the real issue - Federal Supremecy at the expense of Constitutional Federalism. But, that doesn't get Roberts and the Progressives off the hook.
C. Vernon Crisler | 9.28.12 @ 1:55PM
Yes, this was such a stupid article I stopped reading it halfway through. Do AmSpec editors no longer look at what its contributors are writing?
Judicial restraint as conservatives use it means restrained by the Constitution, the exact opposite of Progressive extravagance. The nitwit Roberts simply failed to do his Constitutional duty.
Gary B| 9.28.12 @ 10:05PM
Yes, exactly!
Gary B| 9.28.12 @ 10:09PM
And, how many times, especially in California, have the people had a referendum (direct democracy) overturned by a non-elected panel of "judges" who twisted the law like a pretzel to assure a progressive outcome? As Sarah Palin like to say, "How's that workin' for ya'?"
RCV| 9.30.12 @ 4:30PM
A little contradictory, no? If Judges owe their first allegiance to upholding the Constitution, then they must strike down laws which violate it, whether enacted by a legislative majority or a majority of voters.
Stan Redmond| 9.28.12 @ 12:06PM
Justice Roberts is in the same category of of Bart Stupak when it comes to people that disgust me. Spineless wimps that helped pass one of the most dangerous and liberty stealing laws ever to fall on this country.
Gary B| 9.28.12 @ 10:10PM
Roberts is damned lucky he lives in a civilized country.
PolishKnight| 9.28.12 @ 3:02PM
As upset as I was at the Robert's ruling, I also looked at it philosophically as him telling a harsh truth we need to deal with:
If Democrats win enough elections and pack enough immigrants and welfare recipients into the voting booths, then the Holy Constitution isn't going to save us and we don't exist to protect it. We're what matters. And the left, to their credit, is good about reminded their identity groups of their interests.
When the left has successfully taken over government, and the electorate, then they define what the Constitution really means. Deal with it.
Thom| 9.28.12 @ 4:07PM
If the existing Constitution/Bill of Rights were submitted for ratification through the existing amendment process today it would not pass. If everything up to but not including the 16th amendment and beyond were submitted it wouldn't make it out of Congress. The check and balance provided by the "several states" (9th/10th Amendments) was mostly destroyed in the 1860s; the 17th amendment destroyed the rest of the "several states" powers and purpose. The 16th amendment destroyed the central concept of a "republic" and invalided the 13th amendment prohibition on involuntary servitude. The Equal Protection Clause of the 14th amendment is moot once you start treating a person's economic output separately/differently from other property rights and citizens. All the rest is just icing on a melting cake whose foundation has been undermined by a century of lawyer-istic complexity worship and made meaningless to the common men of our time and alien to the common men that ratified the documents in the first place.
The Supreme Court is a useless appendage in a "Democracy".
C. Vernon Crisler | 9.28.12 @ 5:24PM
'The check and balance provided by the "several states" (9th/10th Amendments) was mostly destroyed in the 1860s'
Not correct...
Alej| 9.28.12 @ 9:32PM
Bullshit, Crisler. Abraham Lincoln.
You want to debate more ? The bastard turned federalism into what we have today. Centralized government. I hope he's burning in hell.
PCPSmokerII| 9.28.12 @ 9:59PM
Go read your racists Ron Paul newsletter, you worthless piece of shit. I hope you and your mother die of cancer. Son of a whore.
aware| 9.29.12 @ 7:13AM
Yeah, a perfect example of the intellectual aspects of modern conservatism. A Dittohead no doubt.
RCV| 9.30.12 @ 4:34PM
Which is why, Alej, the majority of the American people - who don't consider Abraham Lincoln "a bastard", but instead regard him as one of a handful of the greatest Presidents - will continue to reject the political views of you and your ilk.
Thom| 9.29.12 @ 12:18PM
How many of the Southern States voted for the 13, 14, 15th amendments? The Constitution starts out stating the Federal powers are limited to what is enumerated and the 9th and 10th amendments add a punctuation mark to that along with 73 years of practice before 1860. What took place between 1861 and 1865 is just a Mob four times more powerful telling 11 of those “several states” that all the words about limited Federal powers and rights reserved to the “states” along with their sovereign state governments were just a bunch of hooey. They really didn’t mean what they signed in 1787 and 1791 was the message loud and clear. The “several states” created and ratified the documents that founded the Federal system without a gun being put to their heads and a boot on their necks. Those understandings died along with over 620,000 men because the clearly written words in the Constitution meant nothing when put to the test. It has been downhill for the “several states” ever since. Numbers of men with arms means something not words is what the “rule of law” means today.
Thom| 9.28.12 @ 6:23PM
When has the “several states” since the 1860s won a Court argument about powers reserved to the “states” that aren’t enumerated in the Federal Constitution? Just one meaningful case Vern.
Trinacria| 9.28.12 @ 6:38PM
If I chip in a grand for the Am Spec fundraiser, will someone please hire an editor for Mr. Barnett?
Additionally, would someone please kindly inform Mr. Barnett that judicial restraint refers not to "restraint" from ruling against congressional legislation, but rather the obligation to review the legality of such legislation with due regard to the boundaries of the Constitution. In other words, judicial restraint - properly understood - should have "restrained" Justice Roberts from straying from the Constitutional question at hand to salvage legislation that couldn't be supported by the defendant's argument.
PCPSmokerII| 9.28.12 @ 9:52PM
Borning, long, and stupid. Mark Levin said it best. Robert's decision (unspecified federal tax, labels, not tax for the purpose of anti injection, tax for mandate) is incoherent. Then again, taking freedoms away from free people has no legal or morale rationale.
Fuck Barnet. He's a scumbag.