Bench Memos

Contra Klein: Challenge to Obamacare Not Just ‘Politics by Another Name’

As everyone has probably heard by now, the Obamacare appeal in the 4th Circuit was assigned to a panel of judges consisting of two Obama appointees and a Clinton appointee. Like pretty much everyone else, I expect those judges to hold the law constitutional. And no one should be surprised if the ruling is unanimous.

Why? Ezra Klein says it’s because “the legal channel here has become little more than politics by another name. Republicans know it and Democrats know it. Everybody knows it.” Klein goes on:

After all, what’s the alternative explanation? That in 2010, the Republican Party’s entire political and legal establishment suddenly realized than an idea they’d developed in 1991 and pushed through 2008 was an unconstitutional monstrosity? Did the Constitution get amended in 2009? Was the study of constitutional law transformed by a flood of new evidence on the original intent of the “necessary and proper” clause? Of course not. What changed is that Obama and the Democrats passed a health-care law including an individual mandate. And the GOP underwent reverse-Obamafication and turned, en masse, against a provision that many of them had supported for decades.

I think there’s quite a bit more to it.

It is undeniable that some Republican politicians and conservative groups have previously endorsed plans that mirror Obamacare in one way or another. I am even willing to concede that, until very recently, most Republican politicians cared very little about actually subjecting themselves to any Constitutional limit that a court would not enforce. But the Republican party, of course, is not the same thing as the conservative legal movement.

A significant number of conservatives — particularly those who associate themselves with The Federalist Society and the conservative legal movement — have been arguing for years that both parties have all but abandoned federalism and the notion that the U.S. Constitution provides Congress with limited and enumerated powers. So other than Obama’s election, what happened fairly recently that led many Republicans in the political class to change their behavior? The Tea Party gave political force to ideas that, until recently, had existed mostly in law review articles and Federalist Society conventions. Not since the Ed Meese days in the Reagan administration have the Constitution’s structural limits enjoyed so much political support. Klein may not agree with those ideas, and he may believe that Republican adherence to them is merely superficial, but he can’t say that an individual mandate would have been okay with everyone on the right up until it was President Obama’s idea.

Does Klein believe that some sort of political allegiance would have made a difference to, say, Justice Thomas’s view of the Commerce Clause if Obamacare had been signed by President McCain rather than President Obama? Justice Thomas — a George H.W. Bush appointee — joined the majority in U.S. v. Lopez (1995) to invalidate the Gun-Free School Zones Act, which was signed by George H.W. Bush. In that same case, Justice Kennedy concurred and wrote that “it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one” and that “the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.” I suppose that was all reverse-Bushification?

On the flipside, I don’t think it’s fair to say that every Democratic judge who upholds Obamacare is doing so on the basis of loyalty to President Obama. That may happen, just as some Republican judges might make decisions on the basis of political allegiance, but there is a philosophical/legal explanation for the fact that a Democrat might not be willing to strike down a law on the basis that it offends the Constitution’s structural limits. At least since Woodrow Wilson, progressives have viewed the Constitution’s structural limits on federal power as unnecessary and undesirable roadblocks. According to Wilson:

The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of “checks and balances.”

The trouble with the theory is that government is not a machine, but a living thing. No living thing can have its organs offset against each other, as checks, and live.

When the Court unanimously invalidated the National Recovery Administration on the basis that it exceeded the authority granted in the Commerce Clause, Roosevelt complained that, “The country was in the horse-and-buggy age when that clause was written.”

It doesn’t strike me as particularly controversial to say that Democratic presidents since then have tended to appoint judges who identify with that progressive vision of the Constitution and are therefore far less willing to enforce limits on the national government’s power. So if a Democratic judge upholds Obamacare, maybe it’s because she shares the president’s view of the Commerce Clause and the role of courts.

Finally, there is the fact that this case requires federal courts to render judgment on government activity that the Supreme Court has never approved. As the Congressional Budget Office explained in 1994:

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government. Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants.

Whether that unprecedented step is consistent with the Commerce Clause is a genuinely close case, at least under current case law, which is one reason most people expect it to reach the Supreme Court. Klein may look at the relevant constitutional text, cases, and historical materials and reach the conclusion that Obamacare is perfectly constitutional.  But it would strike me as a bit reflexive to say that you’re a political hack if you reach the opposite conclusion on the basis that you believe the Commerce Clause actually imposes limits on what Congress can do.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

Most Popular


Holy Week with Saint Paul

Just the other day, I ordered a replacement copy of The Passion of the Christ -- it can be so impactful for Holy Week meditation. In the years since its release, it’s become something of required Lenten viewing for me. But this year, there is a new movie to help with prayer, Paul, Apostle of Christ, released ... Read More

Heckuva Job, Paul and Mitch

As Thursday's editorial makes clear, the omnibus spending bill is a disgrace. That may be why about 40 percent of Republicans (and 40 percent of Democrats) voted against it. Apart from the absence of a DACA/Dream amnesty, the immigration portions represent a comprehensive victory by the anti-enforcement crowd. ... Read More
Politics & Policy

California’s Pro-Nuclear Renegade

If California’s upcoming gubernatorial race gets decided solely by money, Michael Shellenberger doesn’t have a chance. The latest campaign filings show that Shellenberger, an environmentalist from Berkeley, has about $37,000 in cash on hand. The frontrunner in the June 5 California primary, Lieutenant ... Read More
Politics & Policy

The Sliming of Bari Weiss

If you follow at all the ideological war that’s erupted around the New York Times editorial page, then you know Bari Weiss. It’s too much to call Bari conservative. A better description might be heterodox. On some issues, particularly social issues and immigration, she’s a woman of the Left. On others — ... Read More