Friday, June 29, 2012

Epstein Versus Brooks on Obamacare: A Confused Opinion Or Modesty and Audacity

Richard Epstein has a piece on the ACA (Affordable Care Act) decision in the New York Times.  He declares, "But his decision is wrong. As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice’s position in such an important case is confused at its core."  He continues, "Chief Justice Roberts refers to Congress’s power to 'lay and collect Taxes.' But it’s worth recalling the surrounding language, which notes that Congress has the power to 'lay and collect Taxes' only in order 'to pay the Debts and provide for the common Defence and general Welfare of the United States.'"

He concludes, "Chief Justice Roberts has ignored this fundamental principle: If direct regulation is beyond the scope of the Commerce Clause (as he held), then taxation as an indirect route to the same regulation should be off limits as well (as he failed to hold). This is a baby that should not be split. His attempt to do so undermines his ruling, the court and the Constitution."

David Brooks, also in the Times, disagrees:

"In his remarkable health care opinion Thursday, the chief justice of the United States restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of, if I can say so, Burkean minimalism and self-control."

He continues, "And here’s the biggest gift that Roberts gave to the nation: By restraining the power of the court to shape health care policy, he opened up space for the rest of us to shape that policy through the political process. By modestly refraining from rewriting health care laws himself, he has given voters and politicians more room to be audacious."  He concludes, "Roberts has made a period of innovation and change more likely. He did it by taking the court off center stage and by letting the political process play out.  Self-restraint. It’s a good thing. More people should try it."

I will let you decide which analysis is better.  However, I would like to note that judicial restraint is the first principle of conservative judging.

(Scott Fruehwald)

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