As Michael Greve writes in The Upside-Down Constitution, “the constitutional provisions that suggest a federal authority to ‘commandeer’ private parties are few, institutionally cabined, and calculated to ensure the operation of the government’s own institutions (such as the armed forces and the jury system) — not, as under [Obamacare], to protect the profitability of private corporations.” That the writers of the Constitution authorized commandeering in such limited circumstances suggests that it regards commandeering in other circumstances as improper.
The Court followed very similar reasoning in Printz v. United States, a 1997 case. There the question was whether the federal government could order state officials to participate in a gun-regulation program. The Constitution explicitly authorizes the federal government to commandeer state governments only in limited, specified circumstances, which implies that other commands are improper. That’s what a five-justice majority of the Supreme Court — a majority, incidentally, that included Anthony Kennedy — held.
Agree or disagree with this case, there is nothing radical, hypocritical, or necessarily activist about it. Agreeing with it does not require the Court to overturn a single precedent. It does not commit it to undoing the New Deal from the bench. It does not prevent the government from doing a great many things to improve or “improve” the organization of health care.
Proponents of Obamacare have used that last fact against it. They suggest that a ban on commandeering would be an empty formalism: The government could get around it by simply taxing the population to provide health care, as in a British-style single-payer program. But they underestimate the ingenuity of the Constitution in limiting government. If Congress cannot keep the full cost of expensive legislation off budget by forcing individuals to cover some of it directly, it will be less likely to enact the legislation in the first place. The political fortunes of single-payer suggest this constitutional intuition is correct.
As obtuse as President Obama’s commentary on the Obamacare case has been, he nonetheless deserves a defense on one point. Many conservatives and libertarians have claimed that his remarks were not just mistaken and ignorant but an inappropriate attempt to intimidate the Court. Many of the critics linked his recent comments with his 2010 State of the Union address, in which he denounced the Court’s Citizens United ruling. Obama received criticism then, too, for compromising the Court’s independence.
Obama’s attack on Citizens United was inaccurate (Justice Alito mouthed the words “not true” from the audience) and indecorous (the justices in attendance could hardly issue a press release in response). But there is no good reason to hold that presidents should refrain as a matter of principle from commenting on Court cases. If he believes the Court got Citizens United wrong and hopes that they change course, there’s nothing wrong with his saying so. There is nothing wrong with his trying to influence a pending case, either; that’s what the administration’s legal briefs in the Obamacare case were for, after all.
While conservatives should sometimes favor the Court’s setting aside of a law, they should resist a conception of its role that leaves it immune to criticism. They should not invest it with all the majesty of the Constitution; and they should not invest in the Court all their hopes for a return to constitutional government. The federal government has swollen far beyond its constitutional dimensions. But judicial enforcement of constitutional limits was not the primary reason we used to have a smaller government. If we return to a smaller government, it will not and should not primarily be the work of the courts.
— Ramesh Ponnuru is a senior editor at National Review. This article originally appeared in the April 30, 2011, issue of National Review.