To deploy the rhetoric of activism without regard to the underlying constitutional merits of the question in dispute makes no sense. If the right understanding of the Constitution requires a judge to set aside a statute, then setting it aside cannot be activism. Establishing that it is activism would require establishing first that the understanding of the Constitution that caused it to be set aside was not right. A mere showing that the law was useful, or well motivated, or wide-ranging in its effects, or passed by large margins, would do nothing to establish that the judge was wrong or activist.
This point sometimes seemed lost on both the president and his legal representative before the Court. Obama finished his second set of comments by saying that “there’s a human element to this that everybody has to remember. This is not an abstract exercise” — which is all well and good to note, so long as Obama does not mean to suggest that the Court should be swayed by such considerations. In his closing argument Donald Verrilli claimed that Obamacare would help “a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone” — a tug at the heartstrings more appropriate for a legislative debate than a jurisprudential one.
The Obamacare case presents no real role reversal, then. Liberals are in their familiar posture, urging the Court to reach a congenial result for extralegal reasons. Conservatives, meanwhile, are being “activists” only if their constitutional argument has no merit. That is the consensus position of liberalism, expressed by legal liberals from Ronald Dworkin all the way down to Dahlia Lithwick. But their scorn is neither a legal argument nor anything that ought to impress conservatives.
The case (or at least a case) against the individual mandate is based on an inference from the text and logic of the Constitution. It runs as follows. The individual mandate is not a regulation of commerce; it is an attempt to force people to enter into a type of commerce. The administration attempts to deny this point by suggesting that everyone, by virtue of existing, is already part of the health-care market. Therefore, forcing all people to purchase insurance is merely regulating the way they participate in that market. It’s a contrived argument, and if accepted it would seem to authorize additional federal intrusions without limit.
But the fact that the mandate is not a regulation of commerce does not by itself make it unconstitutional. The Constitution also gives Congress the authority to enact such laws as are “necessary and proper” to execute its constitutional powers, and so the administration additionally argues that the mandate is indeed “necessary and proper” to execute its regulatory scheme. But it cannot successfully make that argument, because an order by the federal government to buy insurance cannot be “proper.”
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.