Way back in September I posted a brief entry about Obamacare to explain that the Supreme Court cannot make it constitutional, since the Constitution is superior to the Court and has an ascertainable meaning that Americans should adhere to even if the Court does not.
The recent oral argument at the Court has generated another news cycle confirming that public discourse on these matters remains seriously muddled. Let's straighten things out.
To start, the federal government asserts that it may compel private citizens to purchase health insurance by virtue of the "interstate commerce clause" found in Article I, Section 8 of the Constitution. According to that clause, Congress has the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes[.]" As I wrote in one of my books, the Supreme Court had blown this clause out of all proportion long before Obamacare arrived on the scene:
A popular retort I've been hearing lately goes something like this: "Well, if Obamacare is unconstitutional, how do you justify Medicare, Medicaid, and Social Security?" Technically, those programs are distinct because they derive from the federal power of taxing and spending, which the Supreme Court de-linked from the limitations of Article I, Section 8 in another series of despicable decisions. That technicality aside, the answer to the question remains rather simple: I don't justify those other programs, which are equally unconstitutional and never should have survived judicial review. Unfortunately, Obamacare is the natural conclusion to years of judicial abdication, so the Court confronts a dreadful choice: allow this totalitarian insanity to reach its natural conclusion, or issue a decision whose logic casts doubt on much of what the federal government routinely does. I anticipate that the decision will indulge in even more contortions, evasions, and prevarications than we're used to seeing.
Obama launched a rhetorical broadside at the Court and warned it against doing something "unprecedented," which many took as an attack on the very doctrine of judicial review. I'm not sure if that's what Obama meant, but I do think it's healthy for presidents and pretty much everyone else to refuse to kowtow to the Court as if it were the Constitution itself. Even though I hate Obamacare and all that it represents, if this is what gets people fired up enough to disobey rather than sheepishly follow the Supreme Court, that's great. I would much prefer that people refuse to obey the Supreme Court when it strikes down state laws under tortured readings of the 14th Amendment, but people rarely do the right thing for the right reason, so this lowbrow defiance will have to suffice.
On that last point, Obama and his ideological clones in academia have pre-emptively denounced the Supreme Court's opinion as a modern-day Lochner. There is so much wrong with this statement that it's hard to know where to begin.
Lochner was a 1905 decision whereby the Supreme Court invoked the 14th Amendment to strike down a New York law setting maximum hours for certain laborers, specifically because the law infringed on the right of private parties to set their own terms of employment (a contractual relationship). Modern academics portray Lochner as a grotesque instance of judicial activism, which is hypocritical because they cheer the century of judicial activism that followed Lochner. To this very day, the Court strikes down state laws as if it were playing Whac-A-Mole. What the academics truly dislike about Lochner is that it struck down an economic regulation -- in their view, only those pesky laws regulating abortion, flag burning, obscenity, and the like should be stricken. Such thinking is inconsistent, illogical, and perfectly encapsulates the fallacy of believing that you can partially release a genie from its bottle. You cannot scorn Lochner v. New York while simultaneously embracing Roe v. Wade. They were both abuses of the 14th Amendment, which the Court long ago explained in the Slaughterhouse Cases should be limited to guaranteeing equal civil rights to the former slaves (i.e., blacks), not to protecting pornographers and infanticides. At least the Court was consistent in the Lochner era because it struck down all manner of state laws, be they economic or non-economic in nature. The modern Court lacks even this saving grace and acts in a manner that is both totalitarian and arbitrary toward the states.
Anyhow, the argument seems to be that Obamacare is an economic regulation and thus should be left in peace lest the Court return to the dreaded Lochner era. As mentioned already, we are still in the Lochner era; the argument to the contrary is inconsistent and ridiculous. And let us not forget that Obamacare is a federal law. Federal laws should be scrutinized more thoroughly than state laws because federal power is only enumerated, whereas state power is presumptive -- states can do anything not specifically forbidden, but the federal government can do only what is specifically authorized. Thus it is doubly dishonest to apply the Lochner analogy to this situation.
We truly are in a world turned upside down. Our "best and brightest" cheer judicial activism in attacking the presumptive power of the states, but whip around and excoriate judicial activism in merely scrutinizing the enumerated power of the federal government. If the Constitution were indeed the supreme law of the land, the Court would be striking down federal laws on a regular basis while leaving the states in peace to experiment within their borders, and the "best and brightest" would denounce the Court for even contemplating outrages such as Roe v. Wade, Texas v. Johnson, or Lawrence v. Texas. I will devote separate entries to those, but for the time being it is enough to observe that the Obamacare discourse reveals deep flaws and perversions in our political discourse.
The recent oral argument at the Court has generated another news cycle confirming that public discourse on these matters remains seriously muddled. Let's straighten things out.
To start, the federal government asserts that it may compel private citizens to purchase health insurance by virtue of the "interstate commerce clause" found in Article I, Section 8 of the Constitution. According to that clause, Congress has the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes[.]" As I wrote in one of my books, the Supreme Court had blown this clause out of all proportion long before Obamacare arrived on the scene:
The motivating factor behind this clause paralleled the Founders’ very purpose for adopting the Constitution in the first place: removing barriers among the States to the free flow of goods and services. In a sense, the interstate commerce clause was meant to guarantee a “free-trade area” similar to the modern-day NAFTA covering Canada, the United States, and Mexico. In keeping with the clause’s purpose, courts initially interpreted the clause in a very plain and honest fashion: if an activity was interstate and commercial, then Congress could take any necessary or proper steps to keep such commerce “regular” and unimpeded; however, if the activity was not interstate commerce, then Congress couldn’t use the interstate commerce clause to legislate upon it. Simple and easy. For example, in 1918 the Supreme Court struck down a federal statute that banned the transport in interstate commerce of any items produced by child labor. Although the statute had the noble objective of curtailing child labor, the Court rightly found that the statute exceeded Congress’s power:The notion that the federal government may invoke the interstate commerce clause to force people to purchase insurance goes beyond even the 1942 lunacy of Wickard v. Filburn. When asked at oral argument why the federal government cannot similarly compel people to buy broccoli, the regime lawyer said that was different because there is not a national system of regulations controlling access to and distribution of broccoli. This is a bootstrap argument, and it resembles rousting a drunk man out of bed and into the street only to arrest him for public intoxication -- the government cannot increase its constitutional authority by deciding to usurp such authority. Besides, as a matter of plain language and sanity, doing nothing cannot qualify as interstate commerce.
"Over interstate transportation or its incidents, the regulatory power of Congress is ample, but the production of articles intended for interstate commerce is a matter of local regulation. . . . If it were otherwise, all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the authority of the States, a result certainly not contemplated by the framers of the Constitution when they vested in Congress the authority to regulate commerce among the States."
As one may surmise, the modern Court no longer reads the interstate commerce clause so faithfully. As one may further surmise, this change of heart occurred during the Great Depression, at which time the Court began to interpret the interstate commerce clause in a very “loose” fashion so as to allow the federal government to do much more than it ever could before. In one of the most embarrassing moments in legal history, the Court in 1942 upheld a federal statute that imposed a strict ceiling on the amount of wheat that farmers were permitted to grow. Roscoe Filburn, an Ohio farmer in the government’s crosshairs, argued quite sensibly that his wheat was not designated for shipment in interstate commerce, but rather for his and his family’s consumption. Nevertheless, the Court rejected Mr. Filburn’s argument and found that the federal government had the unprecedented ability to regulate what he (and other farmers) grew on his own land:
"[E]ven if [the] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . ."
In other words, “interstate commerce” now meant anything tangential or antecedent to commerce, regardless of whether such “commerce” occurred across state lines. Even more amazingly, the Court went on to say that even though this particular farmer was not affecting interstate commerce, the “aggregate impact” of other farmers who harvested wheat might conceivably have a substantial effect on commerce, a possibility that allowed Congress to intervene. What this and similar decisions necessarily imply is that the federal government can regulate anything, because all activities ultimately have or potentially have some sort of aggregate effect on interstate commerce. Despite the fact that such sweeping power directly contradicts what the Constitution stands for, this viewpoint became the received, unquestioned wisdom in legal and political circles for decades to come. Challenges to every perverse excess of federal power under the interstate commerce clause were routinely laughed out of court.
A popular retort I've been hearing lately goes something like this: "Well, if Obamacare is unconstitutional, how do you justify Medicare, Medicaid, and Social Security?" Technically, those programs are distinct because they derive from the federal power of taxing and spending, which the Supreme Court de-linked from the limitations of Article I, Section 8 in another series of despicable decisions. That technicality aside, the answer to the question remains rather simple: I don't justify those other programs, which are equally unconstitutional and never should have survived judicial review. Unfortunately, Obamacare is the natural conclusion to years of judicial abdication, so the Court confronts a dreadful choice: allow this totalitarian insanity to reach its natural conclusion, or issue a decision whose logic casts doubt on much of what the federal government routinely does. I anticipate that the decision will indulge in even more contortions, evasions, and prevarications than we're used to seeing.
Obama launched a rhetorical broadside at the Court and warned it against doing something "unprecedented," which many took as an attack on the very doctrine of judicial review. I'm not sure if that's what Obama meant, but I do think it's healthy for presidents and pretty much everyone else to refuse to kowtow to the Court as if it were the Constitution itself. Even though I hate Obamacare and all that it represents, if this is what gets people fired up enough to disobey rather than sheepishly follow the Supreme Court, that's great. I would much prefer that people refuse to obey the Supreme Court when it strikes down state laws under tortured readings of the 14th Amendment, but people rarely do the right thing for the right reason, so this lowbrow defiance will have to suffice.
On that last point, Obama and his ideological clones in academia have pre-emptively denounced the Supreme Court's opinion as a modern-day Lochner. There is so much wrong with this statement that it's hard to know where to begin.
Lochner was a 1905 decision whereby the Supreme Court invoked the 14th Amendment to strike down a New York law setting maximum hours for certain laborers, specifically because the law infringed on the right of private parties to set their own terms of employment (a contractual relationship). Modern academics portray Lochner as a grotesque instance of judicial activism, which is hypocritical because they cheer the century of judicial activism that followed Lochner. To this very day, the Court strikes down state laws as if it were playing Whac-A-Mole. What the academics truly dislike about Lochner is that it struck down an economic regulation -- in their view, only those pesky laws regulating abortion, flag burning, obscenity, and the like should be stricken. Such thinking is inconsistent, illogical, and perfectly encapsulates the fallacy of believing that you can partially release a genie from its bottle. You cannot scorn Lochner v. New York while simultaneously embracing Roe v. Wade. They were both abuses of the 14th Amendment, which the Court long ago explained in the Slaughterhouse Cases should be limited to guaranteeing equal civil rights to the former slaves (i.e., blacks), not to protecting pornographers and infanticides. At least the Court was consistent in the Lochner era because it struck down all manner of state laws, be they economic or non-economic in nature. The modern Court lacks even this saving grace and acts in a manner that is both totalitarian and arbitrary toward the states.
Anyhow, the argument seems to be that Obamacare is an economic regulation and thus should be left in peace lest the Court return to the dreaded Lochner era. As mentioned already, we are still in the Lochner era; the argument to the contrary is inconsistent and ridiculous. And let us not forget that Obamacare is a federal law. Federal laws should be scrutinized more thoroughly than state laws because federal power is only enumerated, whereas state power is presumptive -- states can do anything not specifically forbidden, but the federal government can do only what is specifically authorized. Thus it is doubly dishonest to apply the Lochner analogy to this situation.
We truly are in a world turned upside down. Our "best and brightest" cheer judicial activism in attacking the presumptive power of the states, but whip around and excoriate judicial activism in merely scrutinizing the enumerated power of the federal government. If the Constitution were indeed the supreme law of the land, the Court would be striking down federal laws on a regular basis while leaving the states in peace to experiment within their borders, and the "best and brightest" would denounce the Court for even contemplating outrages such as Roe v. Wade, Texas v. Johnson, or Lawrence v. Texas. I will devote separate entries to those, but for the time being it is enough to observe that the Obamacare discourse reveals deep flaws and perversions in our political discourse.
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