Tuesday, December 3, 2013

Conservative Constitutionalism's Surprising Talking Points

Ever since the Supreme Court upheld the Affordable Care Act's individual mandate in NFIB, we've been treated to a new and surprising argument by constitutional conservatives.  That argument is in favor of judicial activism.  Yes, that's right: after years of railing against activist judges, conservatives now claim that the federal courts aren't activist enough, in particular, in checking out-of-control exercises of legislative power.

In a series of new books this fall, and reviews in the WSJ here and here (h/t Jon Gutek), constitutional conservatives argue that government regulation has gone wild, and that the courts have not properly checked this growth.  Exhibit A: the Supreme Court's ruling upholding the individual mandate in NFIB.

For example, Randy Barnett, reviewing Clark M. Neily III's Terms of Engagement, argues that Chief Justice Roberts rewrote the individual mandate as a tax, using a "saving construction" as an exercise in judicial restraint in order to uphold a law validly enacted by the legislature.  George Melloan, reviewing Josh Blackman's Unprecedented and Ken Cuccinelli's The Last Line of Defense, similarly argued that Chief Justice Roberts saved the mandate by "call[ing] the act's penalty for noncompliance . . . a 'tax' and waved the ACA through."  

But this turns history on its head.  The government always defended the individual mandate under both its Commerce Clause authority and its taxing power.  It argued the tax point explicitly to the Supreme Court, starting at page 52 of its brief.  It's hardly novel, then, let alone a rewrite of the Act, that the Court upheld the individual mandate under the taxing power.  Indeed, it's exactly what the government argued.  This may not be how constitutional conservatives read the Act's mandate, but it's how all three branches of government did.  The Court's ruling on the taxing power wasn't a reach to defer to the legislature.  Indeed, it wasn't a reach at all.

Barnett's argument that the courts aren't activist enough also ignores the startling activism of the Roberts Court.  Remember, the Court rejected the individual mandate under the Commerce Clause, even as it upheld it under the taxing power.  The Court also limited the Medicaid expansion component of the ACA.  We could go on and on with examples of how this Court overturned state and federal legislative acts, but this one is undoubtedly the biggest: the Court last summer rejected the coverage formula for preclearance under the Voting Rights Act--a provision enacted by a breathtaking bipartisan majority in Congress and signed by a Republican president (no big government types, these).  Given the history, it's hard to argue that this wasn't a supremely activist ruling.  This Court has demonstrated its appetite for activism.  But it's apparently not activist enough.  

Barnett goes on to argue that judicial activism in the name of legislative restraint is necessary because voters don't know enough to hold their elected representatives accountable:

In practice, the claim that laws and administrative regulations reflect the will of the public is often a fiction.  In the economic sphere, regulations are more commonly the product of pressure from politically connected and well-established companies at the expense of upstart entrepreneurs.  Because voters know little about these laws and their impact, they can't hold their representatives accountable for enacting them, and the few affected individuals can hardly influence a general election.

This seems a remarkable claim, given the political backlash to the ACA, or Obamacare, and, as Melloan notes, the political blows that Obamacare supporters suffered in the 2008 mid-terms and beyond.  Voters apparently knew how to hold Obamacare supporters accountable.  But the claim is also ironic: the very problem that Barnett describes only gets worse with more money in politics--a result that the activist Supreme Court ensured when it overturned congressional regulation of corporate campaign expenditures in Citizens United.  

These constitutional conservative talking points fall apart on their own terms.  And that's not even getting to the merits.

http://lawprofessors.typepad.com/conlaw/2013/12/conservative-constitutionalisms-surprising-talking-points.html

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