Supreme Court

Reason Writers Around Town: Shikha Dalmia on How Conservative Justices Can Overcome Their Hang Ups and Kill ObamaCare

|

Many Supreme Court watchers, including Reason's very own Damon Root, have pointed out that it would be a mistake to think that the conservative justices in the Supreme Court will overrule ObamaCare just because they think, as they must, that it is anti-freedom. That's because of conservatives' twin concerns about stare decisis (precedent must be respected) and judicial modesty (courts should stay within the limits of their power).

Georgetown University law professor Randy Barnett has already given the justices a principled way to overcome stare decisis issues by declining to let Uncle Sam use the Commerce Clause to regulate economic inactivity, as opposed to economic activity. But Reason Foundation Senior Analyst Shikha Dalmia writes in The Daily that there are plenty of grounds for the justices to overcome their modesty as well.

The whole point of judicial modesty is to prevent unelected judges from substituting their will for the will of people as represented by a duly elected Congress. However, in our scheme of checks and balances, the Founders explicitly gave courts the authority to hem in the Congress when it substituted its will for the will of the people, which it most assuredly did if one recalls all the anti-parliamentarian tactics supporters used to pass ObamaCare.

 She notes:

 [T]o guard against the tyranny of the majority, Federalist 78 explicitly gave courts the authority to overturn laws that violated the constitutionally guaranteed rights of minorities.

But the problem with Obamacare is not that it represents the illicit wishes of a majority — it's that it doesn't represent majority wishes at all. According to recent polls, two-thirds of Americans want the individual mandate repealed. Indeed, the law has never enjoyed majority support. Still, the Democrat-controlled Congress shoved it down the public's throat through wildly unorthodox methods.

To overcome resistance within its own party, it used horse-trading so brazen that horse traders would be embarrassed.

Read the whole thing here.

NEXT: What We Saw at the Reason Rally in Washington, DC

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. We shouldn’t let our fellow Americans think the Supreme Court will have the last say on this. Even if the individual mandate is upheld, we can still make the individual mandate go away.

    We can make it go away sooner by throwing Obama out on his ass, and if the individual mandate, for whatever reason, is upheld by the Supreme Court, we should make the individual mandate an important issue in this upcoming election.

    It’s so unpopular. Barack Obama doesn’t want to run on the individual mandate–let’s make him do it anyway.

    The time for Romney, opinion journalists, and little people like you and me to denounce the individual mandate–and any president who would support such an awful thing–is right freaking now.

    1. Romney championed the individual mandate as a model for the nation in 2009. Let him be the nominee. Maybe the Dems will offer up an actually good healthcare program just to provide a contrast.

      1. no, Romney used it in his state as a means of cutting down on freeriders on the health system. What he said was that states should craft their own plans, not that MA was the national norm.

        The Dems already put forth their plan and had to bribe their own members to get it passed.

      2. Romney championed the individual mandate as a model for the nation in 2009.

        That’s why it’s important for him to go against it right now.

        “I was wrong”, he should say. Leave Obama to twist in the wind defending it by himself.

        If I were Romney, well… I’d take off my magic underwear and lay off the Brylcreem. …but after that? I’d denounce the individual mandate long before the Supreme Court rules on it, and I’d make repealing it a centerpiece of my campaign.

        The individual mandate is a loser with swing voters, and the hand that rocks the swing voters is the hand that rules the world.

        1. When Romney says “I was wrong” every single American hears “I’m flipflopping in order to pander again.”

          He couldn’t make it the entire campaign because he would probably be smacked down by the court. Team Obama wanted this fast tracked because they are betting on a win even with the Roberts court.

          And it really is his signature accomplishment. His troubles on this subject don’t actually reflect poorly on him, but display the incoherence of arguing against reforming healthcare in a way that once made sense to his party. Even the legal challenges to the law are based mostly in partisan politics, let alone the rhetoric.

          1. That’s fine.

            I wish Obama would flip flop more.

            That would be better than his dogmatic hostility to free markets and capitalism.

      3. Romney championed the individual mandate as a model for the nation in 2009.

        It’s not clear whether he was specifically talking about the individual mandate. He spoke of “tax penalties” to discourage free-riding but that can take many forms. eg, having to pay extra taxes if you use health care but don’t have insurance and don’t pay for it yourself, something I’d be totally for at the state level.

      4. And Obama specifically pilloried the individual mandate when it was suggested by Hillary Clinton.

    2. The time for …. little people like you and me to denounce the individual mandate–and any president who would support such an awful thing–is right freaking now.

      Sure, no argument there. And I’m sure the whole effing Republican Party agrees with you. That’s why they nominated

      a) RumNuts
      b) Scrotorum
      c) The Grinch

      Because these guys are all so principled when it comes to individual rights issues. I mean, there was nobody else in sight that would have been better suited for the job. Surely with one of these boys steering the boat, we’re headed straight for the promised land.

      1. I’m not making this argument on principle, here. I’m making this as a pragmatic way to kick Obama to the curb and get rid of ObamaCare.

        If swing voters hate the individual mandate, and they all associate it with Obama, then it would behoove Romney to let Obama suffer the consequences of that.

        He may have done something similar himself in Massakachusets; Romney might plausibly argue that what’s best for one state may not be best for the rest of the country…

        I don’t care whether it’s a principled argument so much as I care that Obama gets thrown out on his ass so we can get rid of ObamaCare.

        If people associate the individual mandate with ObamaCare and Obama, then anything Romeny does to encourage that, considering how unpopular the individual mandate is with swing voters, is a step in the right direction.

        1. Romney might plausibly argue that what’s best for one state may not be best for the rest of the country…
          ————————–
          he’s been arguing that, but no one seems to hear him. And he’s been clear on repealing Obamacare.

          1. I have to admit I don’t pay much attention to what Romney says.

            There isn’t a challenger to Obama to get excited about.

            This election is a referendum on how Obama has done. I suspect few people outside of Utah are voting for R-money 5000. They’re just voting against Obama.

        2. I admire the neatness of your paragraphs.

      2. Your point about Ron Paul being a principled candidate is appreciated, by the way. It’s just that since they aren’t nominating Paul, we’re gonna need to do something about the individual mandate and ObamaCare once Ron Paul isn’t president, too.

        This is the way to do that.

        I’d rather have a libertarian emperor than a Progressive one, but if a libertarian emperor isn’t really one of the options anymore, then we gotta figure out what to do next.

  2. But the problem with Obamacare is not that it represents the illicit wishes of a majority ? it’s that it doesn’t represent majority wishes at all.

    Not sure whether that’s the best index of what’s right. I’d be unsurprised to learn that the majority of (unincarcerated) citizens are indifferent or approving of prison rape. Fashions change (prohibitions, racial tolerance), and sometimes, if not, as Ibsen had it, always, the majority is wrong.

    1. Aha. Good that I re-read carefully after posting. “Illicit wishes of the majority” pretty much covers what I meant to add. Whoops.

    2. Our rights certainly aren’t a popularity contest.

      If the Supreme Court isn’t there to protect our rights regardless of whether they’re popular or Congress approves of them, then it’s abdicating its responsibility.

      1. Tsk tsk. You haven’t been listening to what the Left says, have you boy? But don’t worry, when they’ve finished achieving total control I’m sure they’ll rehabilitate people like you. Or something.

      2. None of the legal arguments against Obamacare argue that it violates anyone’s rights. The arguments against are all saying that it’s outside the power of Congress.

        ie, if a state wanted to enact a law identical to Obamacare within its territory, it would be perfectly constitutional.

    3. Yeah. Republicanism, how the fuck does it work?

      Leftist: “BUT DEMAWCRACY MOR IMPORTENT THAN 100 YER OLD DOCUMINT!”

  3. Stare decisis: Prior stupidity must stand. This is one reason we have so many stupid fucking laws in this country.

  4. Arbeit Macht Frei

  5. A law passed by Congress doesn’t poll well (after hundreds of millions have been spent advertising against it), therefore 5 men should overturn it? What?

    The conservative justices may well have conservative reservations for not overturning it. One can hope that among their concerns is not “I’m scared, it’s a boogeyman!” as GOP media have distilled healthcare reform politics to, which you residents of the land of personal responsibility have bought into fully.

    So you’re scared of the law because well paid party mouthpieces have told you to be… so how do you propose to fix healthcare in this country?

    1. Hey Tony. Take a good look at this and you tell me where the problem with healthcare inefficiency is:

      http://biz.yahoo.com/p/sum_qpmd.html

      1. So you’re scared of the law because well paid party mouthpieces have told you to be

        Projecting much?

    2. so how do you propose to fix healthcare in this country?
      —————————
      since you asked:
      –first we eliminate the ban on instra-state sales, which introduces the consumer’s best friend: competition. As it is, people in most states have 1-3 options, at best.
      –second we do away with the nonsensical menu of coverages that are mandates by state legislatures based on which medical specialty does the most lobbying.
      –third, tort reform. It’s long past necessary. The cost of defensive medicine is one liberals never want to face, mostly because their benefactors – the trial lawyers – won’t allow it. I have no issue with suing for genuine malpractice but not for things that no doctor could have possibly foreseen.
      –fourth, get govt the hell out of it. Rising costs are pretty well traceable to govt inserting itself in the mix.

      1. You are talking about pennies, then saying “get the government the hell out of it,” whatever that means, just after telling the government to make a bunch of new policy, including special interest handouts like “tort reform.”

        You are not coherent on this issue because there is only one known direction this can go to improve healthcare costs: more national regulation.

    3. so how do you propose to fix healthcare in this country?

      If it ain’t broke, don’t fix it.

      1. That’s a thought. Not a good one. Most people think paying the most in the world for healthcare is a problem that should be solved.

        You guys are always crying about freedom when it comes to saving millionaires tax expenses. It costs average families $1000/year in extra insurance costs to cover the treatment of the uninsured.

        That is a simple fact, and there are two options if you want to deal with it, as libertarians who despise freeloaders ought to: start checking people’s pockets for insurance cards before they’re given lifesaving care, or insure everyone.

        1. start checking people’s pockets for insurance cards before they’re given lifesaving care, or insure everyone.

          False dichotomy. Plenty of poor people were given free lifesaving care at church and charity hospitals before the era of Medica[id|re].

          How about we relax the ER “must treat” laws to exclude patients with non-life-threatening conditions? We’d save a shitload of money if hospitals could tell someone with a cut on their finger to put a band aid on it and go to the clinic in the morning…a money-saving act that would currently make them liable for hundreds of thousands of dollars in fines and lawsuits.

        2. You guys are always crying about freedom when it comes to saving millionaires tax expenses. It costs average families $1000/year in extra insurance costs to cover the treatment of the uninsured.

          Are you trying to imply that Obamacare is going to LOWER the cost to the average family by ~$1000/year? I think you may want to step back, put that argument down and kick it away from you.

  6. The constitution is dead if Obamacare is affirmed by the SC.

    Is that reason enough to strike it down?

    Not if you’re on scotus.

    We’re fucked!

    1. I don’t want to go on the cart!

      1. I’m sorry Mr. C., you were dead long, long ago. The US regime has been one long Weekend at Bernie’s since the 1930s. The dead Mr. C. is propped up between treasury-looting slackers.

        Lurches toward more and more corporativism are like earthquakes in Chile.

      2. Oh! Don’t be such a baby!

  7. should be one simple rule: Judicial activism is fine when it used to limit the authority of the government.

    When judicial activism is used to decide that government can do something new, that’s power begetting power.

  8. …to hem in the Congress when it substituted its will for the will of the people…

    No. The judiciary is supposed to make sure that Congress (and the Executive) stays within the bounds defined by the Constitution. If it is the will of the people to amend the Constitution, there is a process for that (which has not been used in this case, or most others that have illegitimately expanded federal power).

    The Supreme Court is not a body representing the will of the people. It is the body that says “this is the limit, and you have overstepped it”. That is what judicial modesty is about – it is judicial vanity in the extreme to argue that the Court divines the will of the people.

    1. The Congress and the Executive are also supposed to make sure that they stay within the bounds defined by the Constitution. Hence the whole protect and defend the Constitution part of their oaths.

      1. Yeah, and if just two parts of the govt could do their jobs decently (and while upholding the Constitution we have) we wouldn’t have the shit-pit we do now.

        But please god – save us from those who want to do the will of the people. That is the Rousseau fast-track to tyranny.

    2. I think the idea is that, in practice, a law passed with great popular support should be given greater deference by the courts than a law passed by parliamentary trickery. It’s not hard to divine that Obamacare was and is unpopular with the populace.

      Now, I think that’s hogwash, but that’s the theory of judicial modesty.

  9. [T]o guard against the tyranny of the majority, Federalist 78 explicitly gave courts the authority to overturn laws that violated the constitutionally guaranteed rights of minorities.

    Federalist 78 is not part of the Constitution. The Federalist Papers have some value for interpreting how certain phrases in the actual Constitution were understood at the time, but it has no independent legal standing.

    Nowhere in the Constitution are the courts granted the power to strike down laws of any kind. Judicial review supposedly comes from common law, though it’s really the result of a clever power grab by Justice Marshall.

  10. Good post.You did a good work,and offer more effective imformation for us!Thank you.

  11. OK wow that makes a lot of sense dude.

    http://www.Anon-Works.tk

Please to post comments

Comments are closed.