Wednesday, March 28, 2012

Great minds think alike - UPDATED

Or is it fools? I forget.

Anyway, y.t. in a comment thread at LGM yesterday:
That to me is why this case is about the N&P Clause, not the Commerce Clause. (NOTE: I am an expert in neither.)

It’s difficult for me to accept that any problem of interstate commerce could justify a Broccoli Mandate.

But we *know* that the ban on excluding preexisting conditions is within the Commerce Clause. It’s a no-brainer.

To make the ban feasible, however, Congress has to make everyone opt into the insurance market. Straight N&P stuff – you just stand there and quote McCulloch v. Maryland until the other side starts to cry.
And well-known constitutional scholar Akhil Reed Amar, today:
The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it.
Alas, neither of us was called upon to argue the feds' case this week.

... Charles Fried is worth a look. He ends on a disheartening note about the apparent views of the conservative justices this week:
Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else.
... In comments, Just Thinking suggests that the democratic check on abuse of the N&P Clause, throwing the bums out, doesn't work. I think maybe that means "doesn't work well enough to suit some people." Regardless, Amar has good support for his position, as both Hamilton and Madison identified the same check in the Federalist. Hamilton in No. 33:
But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
Madison in No. 44:
If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.
The "limiting principle" as Amar notes is not a requirement imposed on other powers, like taxation ("but what if you tax at 100%?"). Some checks are political, not judicial (as we observed re: the pardon power under the Mississippi Constitution).

The ACA case, we had thought, was resolved 200 years ago in McCulloch:
Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.
It appears that the Roberts Court, unlike the Marshall Court, may indeed pretend to that power. That will be John Roberts' legacy.

1 comment:

  1. Interesting approach - that the 'check' is that the electorate can vote them out of office. Upon inspection, isn't that to a great degree what happened to the House in 2010 following the healthcare legislation? And what began to happen in the Senate (we all know that not all 100 were up for re-election, but to make the question valid, it does take a 6 year cycle to have the opportunity to utilize this 'check').

    But, in an instance like the healthcare legislation, if the only check is to vote them out of office, then the legislation still stands because it was enacted in 2009. Once 'they' are voted out you still have the results of the earlier action. Therefore, there must be a 'check' that allows the 'done' to be 'undone'. With a 6-year Senate cycle, and a super-majority requirement in the Senate, this ultimate 'check' doesn't work. Ergo, the check that is written into the Constitution - separate, equal parts of government.