The Fight Against The Radical Roberts Court
[I]magine the shock when President Obama decided last week to speak plainly about what a Supreme Court decision throwing out the health-care law would mean [... W]hen Obama went after the right’s willingness to use the power of the Supreme Court for ideological purposes, conservatives were aghast — and never mind that conservatives have been castigating activist judges since at least the 1968 presidential campaign.
Perhaps conservative pundits couldn’t stand the fact that Obama called them out explicitly. “I’d just remind conservative commentators,” he said, “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.” Yes, it is.
I've been writing about the subject recently, and yesterday, in my Sunday Daily Kos article, I wrote:
Now what of the Affordable Care Act case? Let's remember who we are dealing with here—four extreme radical hacks (Thomas, Scalia, Alito and Roberts) and a fifth Justice (Kennedy) who thinks it is his job to legislate from the bench.
In a rather remarkable (to me at least) turn of events, some kossacks are heartened by the possibility that these five justices will create "limiting principles":My concern is that we (both Kosters and liberal legal thinkers) are fooling ourselves on this point. The only way out of the problem -- both with the Justices and with the American people -- is to articulate a clear limiting principle. Verrilli didn't; neither do you, because preventative health also impacts the health care market. But you gave it a good try, which is valuable. [...] My life would be much easier and happier if I agreed with Armando that the other side is simply stupid, unreasonable, and vile. But I think that we're making a huge mistake here, and that we really need to think of ways to limit the damage.
There is something incongruous to me about a progressive expressing concern about the need for "limiting principles" from THIS Court with regard to the exercise of the Commerce power to regulate commerce. Those demanding "limiting principles" here argue that those of us who are of the view that the individual mandate is clearly constitutional are ignoring the "slippery slope." To the contrary, we are concerned about the "slippery slope," a declaration that ACA exceeds the Commerce power would lead us down. Especially considering the Roberts Court.
Here is an illustration: In the recently decided Florence v. County of Burlington (PDF), the Roberts Court (with Justice Kennedy writing the opinion) saw no need for limiting principles:Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies. Facility personnel, other inmates, and the new detainee himself or herself may be in danger if these threats are introduced into the jail population. This case presents the question of what rules, or limitations, the Constitution imposes on searches of arrested persons who are to be held in jail while their cases are being processed. [...] The case turns in part on the extent to which this Court has sufficient expertise and information in the record to mandate, under the Constitution, the specific restrictions and limitations sought by those who challenge the visual search procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security. That necessary showing has not been made in this case. [Emphasis supplied.]
Coming from Justice Kennedy, who demanded a "substantial justification" from the government for the individual mandate, this is rich:Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed [...] If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?
Think about that. Justice Kennedy demands "substantial justification" from the government for the individual mandate but a "necessary showing" from persons who are strip searched. Are we really concerned about "limiting principles" for economic regulation from THIS COURT? This "concern" strikes me as otherwordly. They, the Roberts Court, are who we thought they were.
Beyond that, the limiting principles of the Commerce power are clear. In U.S. v. Carolene Products, the Court stated:The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196 [...] The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...] it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. [Emphasis supplied.]
What's the limit? It is this:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited. [Emphasis supplied.]
Until the Roberts Court, these limiting principles were well understood. As for the Necessary and Proper Clause, as recently as U.S. v. Comstock, the Court said:The question presented is whether the Necessary and Proper Clause, Art. I, §8, cl. 18, grants Congress authority sufficient to enact the statute before us. In resolving that question, we assume, but we do not decide, that other provisions of the Constitution—such as the Due Process Clause—do not prohibit civil commitment in these circumstances. Cf. Hendricks , 521 U. S. 346 ; Addington v. Texas , 441 U. S. 418 (1979) [Emphasis supplied.]
The assumption being that if the exercise of the Commerce power (in Comstock it involved the ultimate in denial of a liberty right—it involved a federal statute to civilly commit persons—indefinitely) does not violate other prohibitions of the Constitution, then the test of constitutionality is:We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981).
That's the law (and has been the law for nearly 80 years at least). And unless it is changed by the Roberts Court, the mandate and its enforcement mechanism are clearly constitutional.
Should a progressive REALLY be concerned about "limiting principles" regarding the Commerce power as opposed to the Roberts Court employing "limiting principles" to eviscerate our modern national state (Medicare, Social Security, EPA, etc.)? Really?
Here is what progressives should really be concerned about—the reversal of FDR's transformation of our national government by the Roberts Court. In 2001, Jack Balkin described it well:I think the notion that conservatives want to restore a "Constitution in Exile" is helpful on the one hand but also a bit misleading on the other. What Republican constitutionalists seek, I would argue, is not so much a pre-New Deal Constitution but a pro-business Constitution. That means that the New Deal precedents will not be completely rolled back, but rather will be narrowed in order to facilitate a conservative domestic agenda. Indeed, some New Deal innovations-- particularly those regarding the increased scope of federal regulatory power, actually assist a pro-business agenda. Tort reform is a good example. The tort reform packages presently before Congress would have been unconstitutional according to the understandings of the pre-New Deal Constitution because they would have imposed too great an interference on state tort law, reaching, for example, both manufacturing and commerce.
They are who we thought they were. The process Balkin predicted is well under way. And progressives should be concerned about "limiting principles" for the Commerce power? Not in this reality. Sorry.
They are who we thought they were. And we must fight them. First battle is the presidential election - or, Why Obama: The Supreme Court.
Speaking for me only
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