Bench Memos

“The war on terror and Obamacare: Mirror images”

That’s the title of an interesting column today by the Washington Post’s Charles Lane. Some excerpts:

As policies, Obamacare and George W. Bush’s war on terror have almost nothing in common. They do not address the same subject matter.

Yet from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?

During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.…

The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.

Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.

In cases stemming from the war on terrorism, the court consistently ruled against the Bush administration, though the justices had to get around more permissive World War II-era precedents. The justices were not willing to let the government claim unlimited powers of arrest and detention, even in the name of such a good cause as national security.

In the health-care case, the roles are reversed: Conservatives warn against growth of federal power, and liberals are defending it. Still, it’s remarkable how much the two sides’ arguments mirror each other. In the war-on-terror cases, Bush’s liberal opponents were the ones positing slippery slopes, which conservatives dismissed as far-fetched.…

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