Is the ObamaCare Legal Challenge Just a Shadowy Libertarian Plot to Repeal the New Deal?


Writing at The New Republic, George Washington University law professor Jeffrey Rosen shares his fears about the growing influence of libertarian legal ideas on the conservative legal movement. Of particular concern to Rosen is the connection he sees between the legal challenge to ObamaCare's individual mandate and the larger libertarian project of restoring some of the economic liberties lost during the New Deal era. Here's how Rosen describes the stakes to his left-leaning readership:

This, then, is John Roberts's moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice's stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge [Janice Rogers] Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn't favor.

It's true that many libertarian and conservative legal activists would like the courts to give economic liberty the same respect given to other constitutional rights, such as free speech or privacy, and that such respect would necessarily involve overturning or at least limiting a number of earlier Supreme Court rulings. But as I've explained before, the legal challenge to the Patient Protection and Affordable Care Act has nothing whatsoever to do with overturning any of those previous rulings. Indeed, one of the central arguments advanced by the ObamaCare challengers is that the individual mandate cannot be justified under any existing Supreme Court precedent, including the notorious New Deal Commerce Clause case Wickard v. Filburn (1942). In other words, striking down the individual mandate doesn't require overturning a single previous Supreme Court decision. No matter how the health care case comes out, the Court's New Deal precedents are going to remain the law of the land—for better or worse.