Political Hay

Judges Clash with Voters on Mandate

A death panel for limited government, brought to you by the living Constitution.

By 11.14.11

Send to Kindle

Last week, two-thirds of Ohioans voted against letting the government force people to buy health insurance. The measure passed by a greater margin than the collective bargaining initiative, which grabbed most of the headlines, failed. Ohio's state constitution now rejects the individual mandate central to both the president's federal health care program and the Massachusetts law on which it was partially based.

The vote was a rebuke to Barack Obama, who needs Ohio's electoral votes in order to win a second term, and Sen. Sherrod Brown (D-OH), an Obamacare supporter who is also up for reelection next year.

Less directly, it also sends a message to Republican presidential frontrunners Mitt Romney and Newt Gingrich, who have both championed mandate-driven health care policies in the past. Romney pointedly declined to endorse the initiative during a recent Ohio campaign swing.

Yet the very same day, the D.C. Court of Appeals upheld the president's Patient Protection and Affordable Care Act. The anchor of the 2-1 majority opinion was Judge Laurence Silberman, a Republican appointee with a long history in legal conservative circles. In fact, we can get a good idea of how important the decision was to liberals based on how much they played up Silberman's conservatism.

The Washington Post called him "the conservative judge who upheld health reform" despite a "lengthy history of conservative legal thought." Sort of like a marathon runner who broke records despite a lengthy history of debilitating illness. The New York Times described Silberman as a "stalwart of conservative jurisprudence." The Atlantic referred to him as a "conservative icon" and "one of America's most feared conservative judges." The New Republic celebrated "How conservative judges just provided the most authoritative legal defense for Obamacare."

We are reminded that Silberman has served Republican presidents dating back to Richard M. Nixon. He received the Presidential Medal of Freedom from George W. Bush. (Silberman co-chaired a presidential commission investigating the failure to find weapons of mass destruction in Iraq, which was far kinder to Bush than any independent commission was likely to have been.)

It is hard to think of a better illustration of the disconnect between the Beltway and Middle America, the American people and their black-robed masters, than last Tuesday's contrasting health care votes in Ohio and Washington, D.C.

Of course, something isn't unconstitutional merely because it's unpopular. But the most striking thing about this decision handed down by a stalwart of conservative jurisprudence is how little it had to do with the Constitution as ratified.

Instead Silberman frankly acknowledged the difficulty of squaring this assertion of federal power with an original understanding of the commerce clause, observing that the Framers "obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction." He noted that the Obama administration "concedes the novelty of the mandate and lack of any doctrinal limiting principles." He even allows that affirmation of the mandate could "turn the Commerce Clause into a federal police power, at the expense of state sovereignty."

In summary: the elected branches of the federal government have been invoking the commerce clause to assert powers not delegated by the Constitution for years. The Supreme Court has mostly let them. Tough luck.

Here is an example of how abandoning the idea that we have a federal government of limited, enumerated powers has left the American people with a federal program they do not want, that the original Constitution gave Congress no authority to enact, and that they cannot afford. Obligations are being imposed upon future generations which they did not freely choose, cannot pay for, and cannot get out of.

Each new precedent knocks down the remaining limits on federal power. Not even Wickard v. Filburn, the Supreme Court case cited as justification for the mandate, actually forced anyone to buy wheat. Even the two limits on commerce clause regulation Silberman recognizes -- when the impact on interstate commerce is negligible or wholly nonexistent -- will eventually fall away in the zeal to give Congress unfettered power to "forge national solutions to national problems."

There is a second lesson to be learned here. Much of what passes for conservatism doesn't limit the federal government, much less conserve anything. People who are interested in conserving things, like limited government and the political inheritance of the Founding Fathers, shouldn't simply settle for hoping the Republicans they vote for appoint the right judges.

Republican presidents have given us Earl Warren, Harry Blackmun, John Paul Stevens, Anthony Kennedy, and David Souter. If we're not careful, their judges will also give us a permanent individual mandate.

Like this Article

Print this Article

Print Article
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.