1. So of course the headline of my previous post was unfair. Every single Republican from Hatch to Romney, though, has interpreted the president’s comments the same way. Call it the rhetorical exploitation of his rhetorical etch-a-sketchy moment.
2. I don’t have time to be linking but: Romney says something like this: There’s plenty of precedent for the Supreme Court declaring acts of Congress unconstitutional. A valuable history less that, and one the president’s sketchy moment allowed him to give. But Romney also said that’s what’s unprecedented is the president trying to intimidate the Court. That, of course, is historical illiteracy. Popular presidents always try to intimate recalcitrant Courts (Jackson, FDR, Lincoln in a different way). Darn it, they should—as long as threaten to use powers given to them under the Constitution.
3. But Obama is no FDR and no Jackson. The law he wants to defend against judicial activism isn’t popular. Nor is he particularly popular right now. Not only that, the Congress that passed the law no longer exists. The strategy recommended by Flagg of Congress passing a somewhat different version of the law and challenging the Court won’t work, because no version of the law, of course, could pass the Republican House.
4. The Jacksonian/FDR threat, in effect, is to have the constitutional issue resolved by a decisive election. Certainly Obama has every right to try to have the election turn on ObamaCare—both its constitutionality and its effectiveness in achieving health-care goals shared by most Americans.
5. Striking down the law, of course, changes the burden of proof: Absent a Court decision, Republicans have the perhaps futile task of getting it negated through executive/legislative means. With a Court decision, Democrats have to use the same means (and maybe change the Court) to restore it. But if the law or the president’s agenda generally were overwhelmingly popular, the Democrats (like FDR) can get the job done.
6. The serious presidential complaint is that a politicized Court would strike the law down on what is basically a questionable technicality, not giving the law the democratic respect it deserves. Insofar as the whole libertarian presumption of liberty thing prevails, he might well have a point. That’s why the Court has to say that no reasonable person could say Congress had the relevant power under the Commerce Clause. That means, as leading mind said, it’s not some abstract offense against liberty, and so even with the Fourteenth Amendment the states have the power to have said mandates under the police powers. Romney vindicated, although not for any reason he’s actually given.
7. My relatively nonpartisan definition of JUDICIAL ACTIVISM has to do with an objection to “natural rights” or any other kind of “rights/liberty” jurisprudence—whether it flows from Randy Barnett or Rawls or Hadley Arkes.
