If the Supreme Court invalidates the individual insurance mandate, it need not call into question any other law that has ever been passed in the history of the United States. Why? Because the Congress has never before exercised its Commerce Power to impose a requirement on the American people to enter into a contract with a private company, upon pain of a penalty payable to the IRS. All the Court need do is confine Congress to the powers it has always exercised, including all the powers it exercised since the New Deal which also includes all the powers that were upheld by the Warren Court. A decision to invalidate would be the most minimal of minimalist decisions as it would apply to one law, and only one law.
True, the Affordable Care Act is a major piece of legislation. Indeed it is an audaciously ambitious piece of social engineering designed to fundamentally transform a sixth of the national economy. But there is no doctrine that limits the power of judicial review to small symbolic pieces of legislation like the Gun Free School Zone Act. Nor do any four justices have a fillubuster power to prevent a majority from finding a portion of even a major piece of legislation unconstitutional. To assert that “conservative” justices may not invalidate legislation sponsored by a “progressive” President, or a Democratic Congress (albeit a prior Democratic Congress) would be to inject a wholly political consideration into what is supposed to be the impartial exercise of judicial judgment.
It would be like saying that, in Game Seven of the World Series, a National league umpire should shrink the strike zone when the American league players are at bat — if the game is close, and the American league team is behind. Just to be perceived ny American league fans as “fair.”
Ever since the oral argument, progressive commentators have been engaged in a series of rearguard litigation tactics designed to intimidate or threaten the Court with dire political consequences should it fail to uphold legislation that they strongly favor. The most recent, and most blatant, of these efforts is by my friend Jeff Rosen. Rosen always likes to instruct conservatives about how to be good judicial conservative, lest they be accused of being activist by folks like Jeff Rosen. In his recent column, he throws down his gauntlet to Chief Justice Roberts:
This, then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor. We’ve seen this script play out before, and it didn’t end well for the Court.
The justices know what many readers of the New Republic do not: Nowhere did the challengers to the ACA ever base their claim on “conservative economic doctrines.” No. Where. Our case has always been simply that this claim of federal power exceeds any that has ever previously been authorized by the Supreme Court, and that it is an uncabined, unnecessary and dangerous power to recognize for the first time.
Still, this is very clever advocacy of a radical result under the guise of judicial conservatism. For, if the Court were to take Rosen’s advice, the Roberts Court will have adopted the radical position that law professors have long desired, but that even the New Deal Court never announced: Unless the Congress violates an express prohibition in the Constitution, there are no judicially-enforceable limits on the Commerce Power of Congress. Indeed, we know from legal historian Barry Cushman that some New Deal justices privately considered and rejected adopting this approach in Wickard v. Filburn.
And, as we all know, the Supreme Court expressly rejected this proposition in Lopez v. United States, which these same law professors bitterly derided as “conservative judicial activism” when they were decided. Indeed, back in 2000, Rosen wrote this of the New Federalism of the Rehnquist Court:
The most startling quality of today’s conservative judicial activists is not only the unselfconscious hypocrisy with which they are abandoning the judicial philosophies on which they have staked their careers. It is also their overconfidence and lack of humility — as they blithely substitute their own policy judgment for those of the Congress, the president, . . . and the states.
And, in his 2005 New York Times Magazine story promoting the Constitution-in-Exile meme, he wrote this of Lopez:
By 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress’s power in Lopez, seemed to be answering the call.
Rosen’s claim that, unless the conservative justices uphold this new and dangerous power, they are betraying their conservativism is the height of presumptuousness. If accepted, Rosen’s claim that five justices cannot legitimately invalidate a “big” law unless some of other four go along would create a new, unprecedented, and strictly politically-based filibuster
In the end, though, I confess that I almost admire Jeff Rosen’s chutzpah.