The passage of time has not cooled conservatives’ anger regarding the Supreme Court’s ruling on Obamacare. Most of the talk of late has been about the presidential candidates’ reaction to the decision in the context of the campaign, but we should not lose track of the fact that this is first and foremost a legal ruling with long-term implications for the country, the court and the chief justice.
Randy Barnett, professor of law at Georgetown Law School and one of the architects and principal advocates in the challenge to Obamacare, and John Yoo, professor of law at U.C. Berkeley and a former member of George W. Bush’s Justice Department, provided me with some answers to the common queries on which conservatives are still ruminating. While they agreed on much, they come to opposite conclusions as to whether conservatives come out ahead or behind after the ruling:
Is the credibility of the Supreme Court in the long term achieved by finding a reason not to overrule elected branches or by something else?
RB: Absolutely not. The Supreme Court is a co-equal branch of government. It is the third branch to consider the constitutionality of a measure after Congress decides to enact, and the president decides to sign, legislation. There is no real purpose for the Supreme Court if it merely rubber-stamps the judgment of the other branches. And to the degree it defers, we know that the other branches just ignore the Constitution and do what they like — as I fear they will now do with their new power to tax inactivity. In the meantime, they have a right to think that the Supreme Court can be played, which is why they never took seriously the constitutionality of Obamacare when they enacted it. Congress will do what Congress can get away with politically or legally.
JY: If Chief Justice [John] Roberts placed judicial credibility over the right answers to the legal questions in Sebelius, he has prevented the Supreme Court from performing its constitutional duty and devalued the Constitution.
Chief Justice Roberts, no doubt, was worried about what is known as the “counter-majoritarian problem”: the fact that when the court strikes down a federal law, it is acting against the will of the majority. Because the justices are unelected and unaccountable, so this concern goes, their actions have no democratic legitimacy – unlike the Congress and president that enact statutes. Therefore, courts should employ their power of judicial review to refuse to enforce a federal law sparingly.
But a court that operated along these lines would fail in its basic constitutional duty – to decide cases and controversies under federal law. The Constitution vests that unique function only in the federal courts and no other branch. To defer to elected politicians out of concerns over political opposition is to allow them, and not the courts, to settle the meaning of the Constitution. Combining the power to decide cases with the power to enact and execute the laws was “the very definition of tyranny,” according to “The Federalist.”
The court also loses its own legitimacy by acting as a handmaid to the Obama administration’s quest to subordinate the Constitution to its decisions and its political party’s in Congress. When exercising the power of judicial review, courts apply the Constitution above the more ephemeral decisions of the elected branches. The Constitution is fundamental law, written and adopted in the most difficult process under our system, while laws require only a temporary 51 percent of Congress and the signature of a president elected every four years. Statutes can come and go, but the Constitution endures. If the elected branches can have their way despite the Constitution, the Constitution itself is devalued as the fundamental, permanent law of the land.
Conservatives have made the case for decades that the only valid constitutional interpretation derives from the meaning and intent of the document itself, not from reasoning backward from a desired result. How does Sebelius advance or retard that intellectual perspective?
RB: Well, it is quite clear that this is exactly what Chief Justice Roberts’s analysis did. His stated aim was to uphold the law, if possible. This is like an umpire who announces that when one team is at bat (the government), he is going to shrink the strike zone to help ensure the batter gets on base with a walk if need be. This is the opposite of the approach to judging he promised during his confirmation hearings. Suppose he had said, “Senator, I pledge to do all in my power to uphold your laws, even if I have to reject what is their natural and best reading to adopt some other meaning that will save them.” I suppose the senators would have liked this, but the American people would have been appalled.
JY: I’m sorry to say that Roberts’s opinion does not follow the conservative approach to interpretation, which should focus on the text and history of the Constitution. Take, for example, his opinion on the taxing power. He does not examine the Framers’ original understanding of the distinction between financial penalties and taxes — he seems to conjure out of thin air that penalties and taxes are the same. I welcome the small beginnings to limit the spending clause — where the court held that the withholding of all Medicaid funds to coerce an expansion in the numbers of people covered by the states [was invalid]. But again, even here the chief justice did not undertake a thorough examination of the original understanding of the spending power, which means that the court’s decision here is rudderless. Without any principle of when the use of federal grants to the states becomes coercive, Congress will just play cut the salami with the court. If cutting off 22 percent of state budgets is unconstitutional, what about 2 percent? What about 10 percent? Just coming up with the doctrine on the fly, without any roots in the constitutional text and history, will require future Supreme Court judges to employ a rule-less standard for their rulings.
Do conservatives come out ahead or behind after the court’s opinion? What is the lesson for conservative advocates and scholars?
RB:Having said all this, constitutional conservatives have come out way ahead. Defenders of Obamacare, including 99 percent of constitutional law professors, read the enumerated powers scheme of Article I as giving Congress a national problems power it may use at its discretion, so long as it does not violate those provisions of the Bill of Rights favored by the left. (That is, no Second Amendment or takings clause.) We argued that the commerce clause, necessary and proper clause, and spending powers all have limits, that the courts should police those limits, and that the individual insurance mandate as well as the Medicaid expansion exceeded those limits. This argument was dismissed as frivolous and even sanctionable by most law professors and pundits on the left. They predicted we would get but one or two votes for this proposition. Yet everything we contended received the support of a majority of the justices. This is big. I am now editing the supplement for my casebook and am very happy with Chief Justice Roberts’s acceptance of our arguments. All law students will study this for decades to come. And the alternative would have been devastating: The Roberts Court would have declared that Congress had a plenary power to address any problem it deems to be “national.” It would have been the end of the enumerated powers scheme that survived the New Deal and the Great Society. In this decision, it not only survived, it was strongly reaffirmed in language that even a law professor should be able to understand.
JY: I cannot see how conservatives are better off. . . .[W]hat Roberts gave on the commerce clause, he quickly took away on the taxing power. He and the four liberal justices upheld the individual mandate as a tax because anyone who does not buy health insurance must pay a financial penalty. But Obamacare created a tax unlike any other before. The government has long imposed excise taxes, based on the sale of goods such as cigarettes or gasoline, or taxes based on income. Here, the Obama Congress forced a “tax” on anyone who refused to buy insurance. As the extraordinary joint dissent observed, the court has never classified as a tax a penalty for passively violating the law. . . . One last moment of cheer for conservatives apparently came with the majority’s finding that Obamacare’s expansion of Medicaid violated state sovereignty. Congress threatens to cut off all of a state’s Medicaid funding if it refuses to expand coverage as dictated by the federal government. Federal Medicaid grants average about 22 percent of all state expenditures. Seven justices agreed that threatening to cut off that much federal funding gave states little choice but to accept federal terms. Conservatives have long dreamed of placing limits on the spending power, through which the federal government extends its grasp into state areas such as the environment, education, housing and family matters in ways that the Framers would never have intended. Perhaps Sebelius will set the groundwork for expanded judicial scrutiny, or it could represent an outlier due to the large amount of funds at stake.