Thursday’s Supreme Court decision on Obamacare is a tragic setback to the nascent movement of “political constitutionalism.” For three years, beginning with the emergence of the Tea Party, millions of citizens joined together in trying to settle the broad meaning of the Constitution through political means, by public debate and by efforts to elect public officials committed to a certain understanding of the purposes of the nation’s governing document. Courts should not be the sole arbiters of certain constitutional questions, especially those dealing with the extent and limits of government power. The political process has its own role to play in constitutional decision-making.
The conflict over Obamacare has been the “test case” of political constitutionalism. Both political parties began to speak of the ends and purposes of constitutional government, and political leaders have increasingly discussed not only the policy implications of health care, but its constitutional status. Of course, the constitutionality of Obamacare has also been tested in the courts, where the legal question of the meaning of the commerce clause has been the central issue at stake. But the legal track, until yesterday, had not short-circuited the political track. The worst thing about yesterday’s decision was not its result, but that it was decided at all before the 2012 election. The ink was hardly dry on the decision before the President’s allies were claiming that the constitutionality of Obamacare had now been definitively determined. The Supreme Court had spoken and it was time to move on. To use legal language, public and political leaders should “cease and desist” further discussion of the constitutionality of the law and retreat to their proper role of discussing good or bad policy.
This position, if accepted, would amount to a gag order on constitutional discussion and a full surrender to the doctrine that the Court alone judges the meaning of the Constitution. There is more at stake in this decision than the question of Obamacare itself. Republicans should continue to oppose this law not only because it is bad law and bad economics, but also because it is unconstitutional. The Court plays its role and it is owed its proper measure of respect. But Americans need to be reminded that the people too, operating through their elected representatives, have a vital role to play in deciding great constitutional questions.
PS For a fuller discussion of “political constitutionalism” I invite any readers to go to the current (Spring) edition of the CRB, where I have a fairly long article that tries to explain the idea.
June 30th, 2012 | 6:04 pm
The recent ruling by the Chief Justice is an excelleint indication why we should never vote for RINOS for president.
SCOTUS has made it’s decision. Let’s see what, if anything, happens this fall.
June 30th, 2012 | 6:33 pm
Funny, I read your essay in the CRB a week or so before the ObamaCare decision. After reading the Roberts decision, I think he was trying to affirm the idea of political constitutionalism and also created an enormous opportunity for conservatives in Congress and candidates to do just that.
July 1st, 2012 | 8:25 am
I agree that Roberts was TRYING to affirm the idea of political constitutionalism, but I think he mostly fails.
When congress passed the law it was called a penalty (not a tax), when the president signed the law he called it a penalty (not a tax), but now we are told by the Court that it is a tax.
This process seems antithetical to republican government as expressed through the constitution.
While the Act as a taxing measure may perhaps now become a campaign issue, it is already law.
In other words, the people’s right to participate in the writing of their own laws has been subverted. In fact they have been presented with a process in which the meaning of laws are hidden from them until the are ruled on by the Supreme Court.
July 2nd, 2012 | 8:06 am
Curiously, the apparently clear meaning of the English sentence “A well-regulated prevention of back-alley abortions being necessary for the common good of a free state, the right of the people to keep and bear contraceptives shall not be infringed” was kept entirely secret from us until the Supreme Court recently ruled that it Really Said: “There is a fundamental civil right to possess contraceptives to protect oneself from unwanted pregnancy.”
It appears that Fowler’s Modern English Usage was long ago superseded by the semantic authority of our Court. Yawn.
And woe betide us that there should be even a prayer of mandated affordable constitutional health care for pre-existing children with pre-existing conditions; that would unduly favor them over the not-yet-existing children. Surely the local churches and Lion’s Clubs can pick up the full tab for local children with cancer and suchlike, in keeping with the Law of Subsidiarity.
July 2nd, 2012 | 8:58 pm
[...] I agree with both James Ceaser and Peter Lawler. Dr. Ceaser is right that the question of whether the mandate is constitutional has not at all been settled by the [...]
July 3rd, 2012 | 12:22 am
The “penalty” was always a tax. Roberts position is that just because they covered this fact with a smokescreen for political reasons doesn’t change what it is. The danger to republican government is not the Court but the officeholders who engage in such chicanery. Roberts has blown away the smoke while reinforcing the limits to congressional power, but his belief is that the Court cannot do our jobs for us. If we don’t like deception, if we do not like this tax, we’ve got an election coming up. It can be undone.
July 3rd, 2012 | 12:48 pm
Republican government depends on the Constitution, Tony. And Roberts purposeless, procedural rules-of-the game document has done nothing to restore our veneration for the Constitution. The Tea Party is wrong to think the CJ did them a favor. BIG disservice. The Marshall comparisons are a joke. Roberts knows the law but apparently little about the REGIME. TOO minor league to be a Supreme.
July 3rd, 2012 | 1:52 pm
And all this time, I thought republican government depended on seersucker suits: http://www.politico.com/blogs/click/2012/06/seersucker-thursday-discontinued-127432.html
Thanks for setting me straight, Brad.
July 3rd, 2012 | 6:14 pm
I would add, it seems that if Romney keeps saying the ACA is not a Tax, and he thus can’t, with a simple majority in Congress repeal it under Reconciliation, we are stuck with this awful legislation and follow up court ruling.
Welcome to a new reality.
Increasing health care premiums, loss of choice in physicians, longer waits to see a physician, denial of care (hope one doesn’t need dialysis at, oh, say, age 74?), punishment if one doesn’t undergo screening (missed your colonoscopy at age 60 and now you have colon CA at 63, here’s some morphine and good luck), forced HPV vaccines for your daughters along with compulsory discussions about sex and STDs in the absence of parents. And while conscience clauses are not directly related to the ACA (as far as I know), unelected officials will compel religious institutions, private enterprises and individual health care providers to choose between the dictates of their conscience and penalties meted out from fines/taxes to loss of licensure to (?) prison time. There no better way to proceed with the progressive social engineering project than via leveraging health care to coerce people.
But as I have been told over and over this election will come down to the economy. Does one hope for more unemployment before November?
Now it seems even if he is elected Romney has thrown out the Justice Roberts’ argument that the ACA constitutes a tax yet he says he will repeal it. I understand that to do so without Reconciliation one needs 60 Senators to make the repeal filibuster proof. And you need the ACA to be a tax to go to Reconciliation. If so I’m not sure what Romney’s game here is but it does strike one as prescient that his opponents in the primaries, especially Santorum, were very concerned that if the ACA became an issue he would be handcuffed as how to deal with it.
But then, its all about the economy, right?
So given the the importance of ACA for healthcare, our freedom, our conscience and the economy as well, and given that Romney is, if possible, hamstringing himself even more on this issue … What does one hope for in November regarding the economy? I guess we should always hope on the behalf of those suffering from the economy for a better economy. And now with Romney throwing away the argument for repealing Obamacare…what does one hope for in November?
I guess its better to materially better off while socially coerced than poor and socially coerced.
Go Mitt, go!
July 3rd, 2012 | 8:51 pm
Hi Tony – it is hard to see how Roberts doesn’t reinforce the smokescreen (it worked, didn’t it?)
And in this case congressional power is hardly limited.
I am curious – what do you make of this part of the dissent’s opinion?:
“Congress has attempted to regulate beyond the scope of its Commerce Clause authority, and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports [i.e., Supreme Court opinions]: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax.”
July 9th, 2012 | 1:18 am
Hi Patrick – The dissenter’s argument on the tax/penalty thing comes down to this: “The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.” And further, whether it is “fairly possible” to read as a tax something framed by Congress as penalty. Roberts thinks so. They think not. If this issue were the only one–as so many seem to think it is–I would have to say that Roberts has a strong argument: The character of a thing is more important than its name in identifying its legality. This is especially so when the political rhetoric was so clearly calculated to obscure its true nature. (See here: http://www.powerlineblog.com/archives/2012/07/it-was-always-a-tax.php )
As to your question about the smokescreen working: This is definitely a “fool-me-once” moment and likely a fleeting one at that. This trick is not going to work again, and those standing on the ACA in the next election pretty much have no choice but to run as massive tax hikers. Not likely to work out for them in swing-voterland; therefore, not likely to work out for the ACA. “Repeal” has a nice ring to it right now, if Romney is smart enough employ it properly.
Still, I find the Dissent infinitely preferable for the reason Brad mentioned: It clearly understands the Regime principles better than Roberts. In particular, it gives a much better articulation to the structural principles of the Constitution, in large part thanks to Kennedy (his unique turns of phrase are unmistakeable in this most important section).
The dissent is also clearly right about the severability issue. They therefore had the perfect chance to give voice these critical regime principles and show how they have meaning in our time. But Roberts doesn’t see it and ends up grabbing after smaller potatoes. This is why Brad is also right to mock the Roberts/Marshall comparisons. All in all, definitely a bush league moment. . . . but not because of the tax/penalty thing.
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