Saturday, June 30, 2012

NFIB v. Sebelius: It's Exactly the Big-Government Disaster it Appears to Be

More analysis on Thursday's ruling.

John Yoo cites both Charles Krauthammer and George Will as "apologists" at his essay at the Wall Street Journal, "Chief Justice Roberts and His Apologists":

Road to Surfdom
Some conservatives hope that Justice Roberts is pursuing a deeper political game. Charles Krauthammer, for one, calls his opinion "one of the great constitutional finesses of all time" by upholding the law on the narrowest grounds possible—thus doing the least damage to the Constitution—while turning aside the Democratic Party's partisan attacks on the court.

The comparison here is to Marbury v. Madison (1803), where Chief Justice John Marshall deflected President Thomas Jefferson's similar assault on judicial independence. Of the Federalist Party, which he had defeated in 1800, Jefferson declared: "They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of republicanism are to be beaten down and erased." Jeffersonians in Congress responded by eliminating federal judgeships, and also by impeaching a lower court judge and a Supreme Court judge.

In Marbury, Justice Marshall struck down section 13 of the Judiciary Act of 1789, thus depriving his own court of the power to hear a case against Secretary of State James Madison. Marbury effectively declared that the court would not stand in the way of the new president or his congressional majorities. So Jefferson won a short-term political battle—but Justice Marshall won the war by securing for the Supreme Court the power to declare federal laws unconstitutional.

While some conservatives may think Justice Roberts was following in Justice Marshall's giant footsteps, the more apt comparison is to the Republican Chief Justice Charles Evans Hughes. Hughes's court struck down the centerpieces of President Franklin Roosevelt's early New Deal because they extended the Commerce Clause power beyond interstate trade to intrastate manufacturing and production. Other decisions blocked Congress's attempt to delegate its legislative powers to federal agencies.

FDR reacted furiously. He publicly declared: "We have been relegated to a horse-and-buggy definition of interstate commerce." After winning a resounding landslide in the 1936 elections, he responded in February 1937 with the greatest attack on the courts in American history. His notorious court-packing plan proposed to add six new justices to the Supreme Court's nine members, with the obvious aim of overturning the court's opposition to the New Deal.

After the president's plan was announced, Hughes and Justice Owen J. Roberts began to switch their positions. They would vote to uphold the National Labor Relations Act, minimum-wage and maximum-hour laws, and the rest of the New Deal.

But Hughes sacrificed fidelity to the Constitution's original meaning in order to repel an attack on the court. Like Justice Roberts, Hughes blessed the modern welfare state's expansive powers and unaccountable bureaucracies—the very foundations for ObamaCare.
Still more at the link.

I think Yoo raises two points, one legal and one political. I don't disagree with the legal reasoning, that by calling the mandate a tax Roberts essentially rewrites the legislation and in fact expands Commerce Clause powers --- because, really, any non-entry into mandatory commercial markets could then be penalized taxed. But I think both Krauthammer and George Will (cited earlier in Yoo's piece) are making political arguments. And it's the political arguments that will matter the most in the short term. Republicans and tea party conservatives are energized, and Mitt Romney has declared his agenda on "day one" is to repeal ObamaCare. It'd be hard to solidify the opposing sides more forcefully. But I'm a political scientist, not a lawyer (see Linkmaster Smith for more on that distinction). I'm seeing virtually all political upside at the moment. Indeed, the White House is already denying that the mandate is a tax after all, the poor babies. And as John Podhoretz argues at the New York Post, "It's on to November" (via Memeorandum).

Check back for more analysis. This is the most interesting "lull" between the primaries and the general election ever.

Previously: "Supreme Court's Decison on ObamaCare — A Substantial Win for Conservatives."

Image Credit: The People's Cube (via Maggie's Farm).