It's Constitutional Because We Really, Really Want It

The game the Left is playing with the Supreme Court is interesting.  Their argument going into last week's Supreme Court frackas boiled down either to, "this is really needed so it must be Constitutional" or something like "we thought the Federal government could do anything."  By the way, while I find the latter depressing and it should be wrong, I can understand after decisions like Raich why one might come to that conclusion.

After getting pummeled in court this week, the Left has a couple of new takes.  The first is that while their side's lawyers did not offer any good arguments, particularly vis a vis limiting principles, it's the Court's obligation to do it for them.  The second is an interesting sort of brinksmanship.  It says that this is so big, so massive, so important a legislation, that the Supreme Court basically does not have the cojones to overturn it on a 5-4.  The extreme example of this argument, which I am seeing more and more, is that its so big a piece of legislation that it is wrong for the Supreme Court to overturn it whatever the vote, the implication being that Constitutional muster can be passed merely by making legislation comprehensive enough.

Kevin Drum has been taking both these tacks, and included this gem in one post:

So what will the court do? If they don't want a rerun of the 1930s, which did a lot of damage to the court's prestige, but they do want to put firmer limits on Congress's interstate commerce power, the answer is: find a limiting principle of their own. But find one that puts Obamacare just barely on the constitutional side of their new principle. This would avoid a firestorm of criticism about the court's legitimacy — that they're acting as legislators instead of judges — but it would satisfy their urge to hand down a landmark decision that puts firm limits on further expansion of congressional power. Liberals would be so relieved that Obamacare survived that they'd probably accept the new rules without too much fuss, and conservatives, though disappointed, would be thrilled at the idea that the court had finally set down clear limits on Congress's interstate commerce power.

You can see both arguments here - the proposition that the Court owes it to the defense attorney to make up a better argument for him, as well as the notion that the stakes are too high to overturn the legislation.

By the way, maybe I just went to some right-wing fascist school, but I sure don't remember any discussion of a loss of prestige by the Court as they overruled large swaths of the New Deal, particularly since their decisions were pretty consistent with past precedent.  I always considered it was FDR who lost prestige with this authoritarian impulse to pack the Court to get the Constitutional answer he wanted.  And taking the 1930's as an example, it sure seems both Left and Right are wildly hypocritical and inconsistent on when they are in favor and against Court activism.


  1. Roy:

    In another forum, I wrote "physicists know stuff about things like quantum mechanics or whether the level in one's glass rises when the ice melts. Not so important compared to stuff lawyers (and politicos) know, such as Wickard v Filburn." I wrote that while trying to recover from having discovered that the present SCOTUS fiasco could well be settled by one of over half a century ago, this former event my not ever having heard of before. Makes me think of what happens if I allow a falsehood in logic or a division by zero.

  2. Joseph K:

    I find it odd that Drum would argue that the court needs to decide the way he thinks in order to preserve their reputation. First of all, the reason we decided to appoint justices for life is precisely because we didn't want them worrying about reputation or political popularity. Second of all, reputation with whom? The Obamacare law is quite unpopular and a large majority of people think that the individual mandate is unconstitutional, if we're to trust the polls. Sure, if the court votes against it, it might give the people who thought this was an easy victory for Obamacare a reason to dislike the court, but for the broad populace and people of a more conservative legal persuasion, they'd gain respect for the court since clearly on the merits of the arguments presented at court (even the left admits this) the anti-Obamacare position came out ahead.

  3. anoNY:

    "I always considered it was FDR who lost prestige with this authoritarian impulse to pack the Court to get the Constitutional answer he wanted."

    I raised almost that exact question in law school. Needless to say, the professor didn't agree (background: she was a former NAACP counsel).

    I dislike both the left and the right intensely, but I really don't understand the left's attachment to FDR. Imagine if Bush had had to pack the court to get the Patriot Act through?

  4. BillG:

    Drum advocates the elimination of any and all constitutional principles in favor of a purely political decision. He probably also likes pulling himself up by his own bootstraps.

    The court has been an absolute joke for a long time and will almost certainly approve Obamy care by a large margin. The rest is all kabuki.

  5. Brad Warbiany:

    Well, to be fair to Drum (or whoever first articulated this argument, 'cuz he's not smart enough to make it on his own), it's not the Court's job to argue whether future hypothetical actions [like a broccoli mandate] violate the Constitution, it's their job to ask whether the mandate violates the Constitution.

    So the Court can strike this down saying that to allow it would grant the Congress universal power, as nothing the Congress could ever do would violate this. Or, they could allow the mandate as a "necessary and proper" portion of the scheme of a valid exercise of Congressional power -- regulating the interstate commerce of healthcare. In fact, there could be a "limiting principle" in there -- on can argue that the mandate is necessary to the entire structure of Obamacare, but one would have a hard time arguing that a broccoli mandate -- while it might reduce overall health costs -- is actually necessary to the structure of the law.

    I think this one might get struck down 5-4 on ideological grounds, but I could see it going either way. And frankly, given Constitutional jurisprudence on both the interstate commerce and necessary and proper clauses, I can see the Court, if 5 choose to declare it Constitutional, writing an opinion containing language suggesting that there is still a limiting principle (whether they articulate one or not is immaterial) and that this doesn't violate it.

    I don't like it, but I'm not sure this one will be struck down.

  6. John O.:

    I remember Obama's SotU address after Citizens United and deriding the court for their ruling. All nine justices were rather offended by Obama's speech towards them; while everybody in the House chambers stood up and applauded Obama, the justices remained seated.

    The Left are spoiled children and when the Court rules against them they complain with the most juvenile whining I've ever seen from adults.

    I'm expecting much much more of it when the court rules on Obamacare regardless of outcome.

  7. EscapedWestOfTheBigMuddy:

    Wait! I'm confused.

    Rather than "acting as legislators instead of judges" the court should "find a limiting principle of their own" (emphasis added).

    What has he been smoking?

    And what's wrong with finding the limiting principle that is in the text and the historical record?

    And I'm also in the crowd that thinks it was FDR who came out the worse for the court packing debacle--and that after being raised in a firmly liberal home.

  8. IGotBupkis, CRIS Diagnostic Professional:

    ...Not only is it Cranio-Rectal Insertion Syndrome... they've got it so bad it's coming out the top!

    That's right: Möbius CRIS.

  9. me:

    I'll lead of with my usual criticism of wanton and imprecise use of "the left". The left in this country is quite vocally disgusted with Obama and his rightwing administration...

    That out of the way, I really don't get how anyone could have through that the Obamacare disaster and the idea of mandates would ever fly, and I don't see what the current debate is about. Just rule the damn thing unconstitutional and be done with it. The supreme courts job isn't to make better law or make a somewhat awful law out of a totally awful one. The supreme courts job is to take a look, say "well, this is why we have a constitution" and strike nonsense like this down.

    Big fat luck that they'll actually do that, they haven't been too eager to do their job recently (state secrets, assassinations, due process and Patriot...).

    The current debate about what they should do shows one thing very clearly - the meme (that's neither left nor right) that all control should rest with the state is alive and well.

    On a side-note, it's interesting to me that the definition of "democracy" skirts the question of balance of powers (ie not "how do we elect our leaders" but "how is power distributed through the tree of society").

  10. Sam L.:

    Well, if they decide FOR Obamacare, they will lose the support of what. 75% of the people?

  11. NL_:

    So to avoid the accusation that the Court is being political and calculating, it needs to concoct an entirely fictional standard designed solely to cater to political opinion. Got it.

    The thing is, I think he's right on the Court's perspective. The Court usually accepts a massive role for the Congress in legislating, which can be seen by the ridiculous history of Commerce Clause and Nondelegation cases. You have case after case where the Court comes up with some strained view of language and law to justify whatever Congress wants to do today, but still limits the outer bounds of their power.

    The problem here is nobody can think of a very compelling limiting principle other than "health care is special." Which really has no limiting power and certainly doesn't seem to have even the pretense of a textual basis or even any precedent behind it. Drum wants the Court to come up with a limiting principle just on the other side of Obamacare, and I think they'd LOVE to find one if only to avoid getting involved, but nobody can come up with anything that isn't insultingly self-serving.

    So the Court is forced to pick between an unlimited Commerce Clause or striking down a major law.

    Of course, the Congress could have avoided this constitutional problem if they had gone for single-payer. But the vast majority of the political establishment and the general population doesn't want single-payer. The taxing and spending power is so broad that almost everyone agrees that single-payer health care would (unfortunately) be constitutional. Obamacare is an unconstitutional way to try to implement something that would be constitutional but very unpopular. Meaning the one governmental check lefties usually accept, the accountability of elections and public opinion, they want to circumvent by use of commandeering private citizens and companies to achieve something very similar.

    So nobody will notice that Obamacare is substantively very similar to single-payer because it doesn't require enormous tax hikes and it doesn't involve annual trillion-dollar outlays. The government avoids the bad image of high taxes and it avoids the scrutiny of budgetary oversight by forcing individuals and companies to bear much of the burden for paying and budgeting the program. Which is exactly why such commandeering ought to be unconstitutional, while an even worse policy like single-payer is constitutional because at least its flaws are more obvious.

  12. Ted Rado:

    I am dismayed by the fact that most of the Supreme Court justices vote predictably right or left. If it were a truly objective body, it would consider only the legal merits of the case and leave all idealogical biases out of it. Thus, individual justices would randomly vote on the liberal or conservative side of issues, depending only on the legal aspects of the case. This automatic four liberal, four conservative, and one swing vote is absurd. The Supreme Court is a joke.

  13. Kermit:

    The problem here is nobody can think of a very compelling limiting principle other than “health care is special.”

    Yeah, health care is extraordinarily mundane – right on the list after food & shelter and something I cannot remember. Now, the Post Office & roads, patent office, weights & measures – those are special.

  14. JKB:

    I like the SCOTUS should find the limiting factor for us line. Very modern university in their thinking. NR:Phi Beta Cons recently had a post on the "Heavy Editing" professors do to papers and dissertation of minority students. "The “soft bigotry of low expectations” can carry on even through grad school." It seems the Left wants a little affirmative action for itself even before the SCOTUS, a bit of heavy editing to its extreme.

  15. Benjamin Cole:

    Two things bother me.

    1) Okay, the Feds can go on a farmer's land, and tell him how much to produce--even if he chooses to produce more for personal consumption. If he produce a crop that is too small--too small grapefruits--he can be told not to sell those grapefruits. That's constitutional.
    I can be drafted.
    I can be taxed.
    I can carry a gun, but not an automatic gun.
    I can be assassinated without trial or notification of kin (even after the event), if my government determines I am a terrorist.

    But I cannot be compelled to pay for health insurance, even if I use health facilities paid for by taxpayers.

    It seems to me that what is Constitutional just depends on who you ask---and that is the most worrisome aspect of all.

    Our health care system is a mess, and fantastically expensive. Americans are loathe to accept euthanasia, as we must. With an aging population, we will see 25 percent of out GDO go to health care soon.

    Single payor countries spend much less. Can't say I like socialized medicine, but we have is worse.

  16. A Friend:

    Benjamin Cole, as we collectively get richer, a higher percentage of our total spending will go to luxuries, like healthcare. What is the point of having a goal or limit on what percent of GDP goes to healthcare? Why not set one for cars or housing or makeup?

    Those other countries, like Canada, spend less for two reasons: first, they get less, and second, they ride our coattails on all new medical research.

    Your argument is like saying Canada, England, France, Germany, and Japan spend much less on defense as a percent of GDP than we do, so we should cut. However, last time I looked we were defending those countries with our Army, Navy, and Air Force.

    We need spending decisions and financial resources pushed to the same level, like they are for most other goods, or healthcare will still be wasteful despite what percent of GDP it's limited to.

  17. Larry:

    Great discussion. However, it is decided it will be historic and life altering for generations to come.

  18. Benjamin Cole:


    Yes, you are on the right track---we should spend less on all federal programs, military or social. They are all wasteful.

    On health care, we either need to go whole hog into private care or do whatever they do in Japan, the country that spends the lowest percentage on health care (and gets the same results).

  19. Patrick:

    A basic question; "Why is health insurance so expensive in the USA?"

    A second basic question " Why is the health care so expensive in the USA?"

    Answer those questions, and one then has an understanding of what "things" actually need to be addressed. To compare our present system of health care to any other system in the world requires an understanding of all the "cause and effect" of everything that is built into the system(s). There are thousands of differences, large and small, each has a bearing on cost. I doubt seriously that the "legislation" presently under review with SCOTUS will undo the cost structure built into the present system, as more legislation generally raises costs (I've never seen a system where more regulation lowers costs). Additionally, I wonder if the gist of the entire Health Care plan (Affordable? not likely) ... has an agenda far beyond health care .... Can you see it?

  20. Kermit:

    The first question should be ”Why is the health care so expensive in the USA?”

    Compared to, say, Ghana or Mexico?

    Because we can afford it.

    We have a bunch of old people here, retirees, willing to hock their $200,00 home or RV for a chance at some new very expensive medicine which will give them a chance at living for a few more months, that's why.

    “Why is health insurance so expensive in the USA?”

    Because it has to provide coverage for the same treatments that the self-insured (see above) pay premium dollar on cutting edge medicine for.

  21. me:

    @Kermit - health care in the US is expensive compared to outcomes compared to 1-st world countries like Germany , France and Japan. And it's not 5-10% more expensive, it's around 1000% more expensive. And that causes all sorts of regulatory problems, lately someone attempting to force mandates down our throats. That's why it's worth asking those questions.

    If you pay $500 for electricity each month and all your neighbors average $50, it's a good idea to do a root cause analysis, even if you can afford it.

  22. caseyboy:

    The left talks about the political firestorm and damage to SCOTUS if they find ACA unconstitutional. How do they figure? Polling shows that a majority of people want it overturned or repealed. The bill passed along partisan lines and at the next possible election cycle, the democrats were removed from the majority in the House. They nearly lost the Senate, but not enough seats were up in that cycle. There were republican landslides in local and statehouses throughout the country.

    The political firestorm will result if the court finds this law constitutional.

  23. caseyboy:

    @Kermit & Me, healthcare is expensive in the US because it is poorly regulated or rather the regulations in place distort the market and cause poor consumer decisions. Add to that the highest per capital attorney population in the world and you see what you get, out of control costs. Compare elective surgeries to non-elective procedures. You can get your eyes fixed, your nose straightened and your chin tucked at a lower cost and with better precision today than 10 years ago. Get government out of healthcare, stop issuing mandates and put limits on lawsuit awards and you will see healthcare costs come down dramatically.

  24. Doug:

    @Benjamin Cole: Does a Japanese cardiologist have to spend $200k/yr for malpractice insurance? Must Canadian doctors cover all their diagnostic bases to avoid frivolous yet expensive lawsuits by the the Canadian Bar Association? Must every Canadian hospital have all diagnostic equipment on-site, or is having one MRI machine per province good enough? Should we all experience the same fate as Natasha Richardson did when she ran into that Canadian tree, in the name of "lowering expenses"?