On Obamacare, Originalism, and Judicial Restraint

In connection with yesterday’s Sixth Circuit ruling, Yuval Levin (my Ethics and Public Policy Center colleague and editor of the outstanding quarterly journal National Affairs) points out in a Corner post that law professor Eric Claeys’s article in the new issue of National Affairs—“Obamacare and the Limits of Judicial Conservatism”—provides a valuable framework for understanding (in Yuval’s words)

some crucial distinctions among judicial conservatives—particularly between judges who generally emphasize originalism above all (like Justice Thomas) and those who often emphasize judicial restraint above all (like Justice Scalia)—distinctions that bear heavily on one’s understanding of the constitutionality of the individual mandate (or at least on the appropriateness of the court’s overturning it) and that are likely to be highly relevant when the Supreme Court takes up the health-care law.

I’ve just read Claeys’s essay and would very much recommend it, including this bottom-line advice:

Although one of the individual-mandate challenges may succeed, of course, Obamacare’s opponents must consider seriously the possibility that these arguments may not even muster four votes in the Supreme Court. They must avoid bragging that the courts will finish off the Patient Protection and Affordable Care Act, lest they sow complacency among members of Congress and the voting public. Above all, they must keep their focus on 2012 and the political and policy ground games. In the end, a legislative repeal—signed by a president who supports it—remains the surest way to undo Obamacare.

I do have one friendly amendment to the “four key principles” that Claeys offers at the end of his essay as “useful guides” going forward, all of which focus on the constitutional case against Obamacare: If the Court ends up ruling that the individual mandate is constitutionally permissible, opponents of Obamacare should pound the case that Obamacare (not just the mandate but the entire monstrosity) is terrible policy. That’s the most compelling ground for securing a legislative repeal.

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