Strengthening Constitutional Self-Government

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What Part Of 'Because I Said So' Don't You Understand?

So it looks like Solicitor General Verrilli was shredded by the Supreme Court Justices yesterday on the question of the federal health insurance purchase mandate.  Many liberal journalists are shocked at his inarticulateness.  Liberal journalists should blame themselves a little.  The arguments advanced for the federal health insurance purchase mandate often came down to some combination of "only mean people oppose nice President Obama's law" or "all really smart and honest people all agree with smart and honest me that Obamacare is like so totally constitutional."  Dalia Lithwick's tantrum is an example of the first kind of argument and Jonathan Chait's rant is an example of the second.  Lithwick's post is less interesting.  It doesn't contain any actual arguments about why the Obamacare mandate is constitutional.  She mostly just says that only a horrible person would even think about considering whether such a wonderful law as Obamacare is constitutional.  I wonder why Solicitor General Verrilli didn't go with that strategy during oral arguments.

Chait's post is a more telling example of how self-congratulation and group think can weaken one side's argument.  Chait writes that the health insurance purchase mandate must be constitutional because health care is interstate commerce and the federal government must therefore be able to compel an individual to contract with a private firm to purchase a product they do not want.  Chait specifically takes on the activity/inactivity distinction.  Chait argues that the government does regulate inactivity in that it mandates vaccinations and sometimes compels military service. The federal government derives the power to draft from the power to raise armies and navies rather than the interstate commerce clause.  The states (not the federal government) have the power to compel vaccinations from the general police power that the federal government lacks.  That is why the Supreme Court is very unlikely to strike down the state-level Romneycare insurance purchase mandate and more likely to strike down the federal-level Obamacare insurance purchase mandate (one can imagine circumstances where the federal government mandates vaccinations for certain classes of citizens - soldiers for instance.) 

The problem with all of this wooly thinking is that it leaves one badly prepared when one steps out of the bubble of the likeminded.  Imagine if Solicitor General Verrilli had said something along the lines of "Well of course the interstate commerce clause gives Congress the power to force people to buy health insurance.  Congress has the power to draft don't they?"  Even the liberal Justices would have laughed at him in horror and disgust.  Solicitor General Verrilli couldn't say "Well sure transportation is an interstate industry and everyone participates in transportation markets, so therefore Congress has the power to mandate that every American contract with General Motors to buy a Chevy Volt or else pay a civil penalty."  That stuff works when you are around the campfire with people who really really want the Supreme Court to uphold Obamacare.  It works less well when you are in front of Supreme Court Justices who are under the impression that the Constitution created a federal government of limited powers.

So Solicitor General Verrilli did his pitiful tap dance about how the health care market is "different" and how the federal government has the power to compel you to buy health insurance but not a cell phone or burial insurance.  And the result was that the more conservative Justices pounded him into the ground.  The problem wasn't Verrilli.  It was the quality of his arguments.  And that leaves Lithwick and Chait to explain that only meanies and poopyheads disagree with them.

Before you laugh at Lithwick and Chait, keep in mind that Justice Kennedy might find their arguments (which are attacks on the status of those who disagree with them) more convincing than the constitutional arguments of the Solicitor General.       
Categories > Politics

Discussions - 13 Comments

Good post.

And if there's a "living constitution," on what grounds can Progressives criticize any decision? They can argue it's not historically necessary, but that's a much disputed point. And if the question of what is constitutional turns on what is necessary in current circumstances, then are we still talking about law? And are our judges trained to make such judgments? Is there consensus about what we need today?
As I understand the living constitution argument, it presumes that History is moving in a direction Progressives like. Hence any decision that furthers their agenda is constitutional, and any decision that disagrees with it is unconstitutional.

And I was worried that we on the right had been too convinced of the unconstitutionality of Obamacare. One headline said, "The Constitution Comes Through, Again!"

Nicely done, Pete.

To justify racial preferences, liberal justices argue (see Brennan in Bakke) that of course government can prefer one race over another--see the Japanese exclusion cases of WW II.

It's long since time that this endless justification of Federal power based on the Interstate Commercial Clause be called into question. It's a very thin reed upon which to build the mighty edifice that our Federal Government has become.

This may be the best post I've ever seen in NLT. Thank you, Pete.

Good job Pete.

Your post reminds me of the how the media and the left are handling the Zimmerman/Martin fiasco...

A half Jewis half Hispanic registered Democrat who tutored black children in his spare time (I believe the NYT referred to Zimmerman as a "White Hispanic" which begs the questions will the NYT refer to Obama as a "White African American?) shoots and kills a black teenager and it is all white republican's fault...

Liberalism is a... you finish the sentence.

I am literally going to send this post to all I know. It perfectly encapsulates not only the last few days' proceedings, but the bigger question of the overreach of the law and the even bigger issue of the left's overreach of the last 50 - 80 years.

Thanks everybody.

The lefts overreach? Reagan, Bush, Bush Jr anybody?

As for the comment about the individual mandate (originally a republican idea). Many parts of the law do not hinge on that. Setting up insurance exchanges is a great idea as it facilitates citizens choosing their private insurance. Surely that is something to support.

Do Republicans think people should have health coverage or is it all down to if you can afford it - if so how does this make the US the most just and moral country in the world?

Last point. If this law (whether you like it or not) is truck down by unelected judges then I hope we will hear no more about Liberal judicial activism since this law was clearly democratically voted on and signed into law. The citizens of the US have the power, through elections, to repeal this law. No-one can say healthcare was not discussed in the 2008 election (or primaries). So there was a mandate to do something about the issue.

Congress passed a somewhat empty legislative package and filled in the details after passage. Cheesy? The majority of the House shifted parties in the following election. The same, apparently, will happen in the Senate in the next election. Is that the kind of electoral repeal you are talking about, Mike?

Isn't the function of the Supreme Court to review the constitutionality of legislative acts when there is a dispute about them? States brought a dispute. The Supreme Court is not being activist in that it is not legislating from the bench. It is doing its job as defined in our Constitution.


" If this law (whether you like it or not) is struck down by unelected judges then I hope we will hear no more about Liberal judicial activism since this law was clearly democratically voted on and signed into law."

Well, I'm afraid that, if the Supreme Court uses the more that 200 year old power of judicial review to strike down part of Obamacare, you will continue to hear some people complain that this or that act of judicial review is illegitimate - and those complaining might be right.

you need to read more about conservative thought- your answer is exactly the problem liberals have- "its activism if you do not agree with me" mindset. I bet you think Bush v Gore was unwarranted as well- even tho when a recount was done by Gore standards by a media consortium it showed Bush would have won anyway. It is only activism if it does not rely on the constitution as the basis for the decision- and I do not mean the "living" constitution either. B/c a law is democratically "passed" does not make it so- we live in a constitutional system- not a pure democracy.

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