Great piece in tomorrow’s WSJ by Michael W. McConnell, The Liberal Legal Meltdown Over Obamacare. Subscription required, here are a few choice grafs:
On accusations of partisanship:
It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.
It seems unlikely this one-sided definition of “activism” will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.
If liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.
On allegations that this will overturn (non-existing) New Deal precedents:
That may be a correct reading of the Constitution, or not, but it must be taken seriously. There is no precedent either way, because Congress has never passed a law like this before.
The oral arguments made before the Supreme Court in March revealed that the defenders of the health-care mandate are unable to identify any line between what they say Congress can do and what it cannot. The solicitor general offered various reasons why health care is unique, but none of them are grounded in any principle based in constitutional text, history or theory. That does not mean ObamaCare is doomed. But it does mean that, if the court wishes to uphold the statue, the justices will have to come up with their own rationale.
On the political sloppiness and miscalculation:
The drafters and defenders of the health-care law have only themselves to blame for this mess. With a filibuster-proof Senate and total domination of the House, they did not trouble to build the consensus necessary for transformative legislation of this scope.
More importantly, they did not take seriously their obligation to legislate within the limits set by the Constitution. Indeed, when a reporter asked in October 2009 what the constitutional basis was for the statute, then-House Speaker Nancy Pelosi dismissively responded, “Are you serious?”
Either the drafters of the legislation should have stayed within the generous bounds of authority established by prior precedent, or the administration’s lawyers needed to offer a legal defense for going beyond those precedents that does not do violence to fundamental structural features of our Constitution. They could hardly expect the independent judiciary to write Congress a blank check of plenary regulatory authority, without discernible limit.