Striking down an unconstitutional law is not activism
President Obama was once a lecturer on constitutional law, but he appears to be a little rusty. Most of what he has said recently about the Supreme Court case challenging the constitutionality of the health-care law he signed has been ill-informed.
Asked about the matter at a press conference on April 2, he responded that he was confident the Court would uphold the law: “And the reason is because, in accordance with precedent out there, it’s constitutional.” Actually, there isn’t any precedent for the Court to examine on the question of whether the federal government can order Americans to buy health insurance. There are plenty of cases, from the New Deal onward, in which the Court has said the federal government has broad leeway in regulating commerce among the states. Wickard v. Filburn, for example, is a canonical 1942 case in which the Court held that Congress may regulate even intrastate economic activity because of its interstate effects. But the oral argument did not dwell much on such cases, because they do not offer much guidance for the Court in the Obamacare case.
A few sentences later, Obama added, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” As many commentators pointed out, this was doubly wrong. The Court has often overturned laws passed by large majorities of Congress, and Obamacare passed narrowly.
Finally, Obama came to his most cutting remark. “And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.” Now this comment, too, is clearly mistaken. Conservatives have never maintained that it is always wrong for unelected justices to “overturn a duly constituted and passed law,” and to suggest that this purported view of ours might be sensible is to cast doubt on the legitimacy of a core judicial function.
Obama drew enough criticism for these remarks that he retreated the next day to his false claim about “well-established precedents.” If the Court does strike down Obamacare in part or in full, we will hear more about those precedents — and about how the Court has threatened the post–New Deal welfare state — as well as about conservative hypocrisy on judicial activism.
So it’s worth restating a few points about judicial conservatism, especially since people as ostensibly well informed about constitutional controversies as the president seem unfamiliar with the basics. The first is that the accusation of judicial activism presupposes a baseline of what constitutes constitutional fidelity. In the paradigmatic case of the term’s usage, a judge is accused of departing from this baseline in order to strike down a law that is compatible with the Constitution but that the judge opposes because it offends his sense of justice or sound public policy.
To call a judicial decision “activist” is to state a conclusion rather than a premise. The word does no analytical work, and nobody seriously thinks it does. That is: The reasoning always moves from “The nullified law was compatible with the Constitution” to “The judge behaved as an activist,” and never the other way around. The phrase “judicial activism” is not therefore meaningless, as many people say; it is simply shorthand. (The same characteristics apply to the word “pro-life,” which few people consider meaningless.)
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.
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.