House Minority Leader Nancy Pelosi — the speaker of the House when Obamacare was passed — has an op-ed in the Chicago Tribune highlighting her constitutional confusion. Thinking she has spotted Republican inconsistency, she raps jurisdiction stripping (or “court stripping,” as she calls it) while also hinting the Supreme Court shouldn’t overturn the federal health care law.
Nowhere in her column does Pelosi actually grapple with two issues: the fact that Article III, giving Congress the power to regulate the jurisdiction of federal courts, is actually in the Constitution; she does not identify the constitutionally enumerated power that gives federal government the authority mandate the purchase of health insurance or otherwise implement Obamacare. (Pelosi is also oddly silent on the jurisdiction-stripping in federal laws designed to combat terrorism and restrict habeus corpus appeals in death penalty cases.)
In most cases, conservatives have backed jurisdiction stripping not to prevent federal courts from counteracting the federal exercise of non-enumerated powers but to prevent the courts from using dubious constitutional theories to impose policies on states that have traditionally been outside the federal purview. The Defense of Marriage Act does not prevent states from choosing to recognize same-sex marriage. Neither does the Marriage Protection Act. John Hostettler, the latter bill’s author and a genuine conservative critic of judicial review, actually voted against the federal marriage amendment.
This is not to say that there are no inconsistencies or conservative excesses in criticizing federal courts. But there is no inconsistency is maintaining that the federal courts can rule that certain federal laws conflict with the Constitution while also arguing that if an issue isn’t properly a federal matter, this pertains to the courts as well.
Pelosi thus denies a real enumerated power while asserting an imaginary one. While still speaker, Pelosi memorably responded to constitutional questions about Obamacare by asking, “Are you serious?” In her case, the answer still seems to be no.
