Constitutional Opinions

Constitutional Contempt

Why the Obama legal team struggled at the Supreme Court.

By 3.29.12

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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.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.