Supreme Court

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

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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.

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  1. The conservatarians really need to clarify the issue of “judicial restraint”/activism. Judicial restraint is when the judiciary restrains THE GOVERNMENT. It is not judicial “activism” to say, oh hey, the government isn’t allowed to do this, on top of what the constitution forbids it to do.

    The converse, a judiciary that actively decides to create a new role of government, is not at all the same type of “activity”.

    1. (or, really, rubber stamp another branch of government creating a new role for itself out of whole cloth)

    2. A person’s definition of “judicial activism” is distressingly tied to whether or not the court ruled in the way that person wanted them to.

      1. true for libertarians, too, I guess. Maybe we should just accept that there is good activism and bad activism and make everyone else look like assholes for a change.

        1. Yep; I was trying to explain this to Tulpa only as regards federalism in the evening links.

          There is no rule or institution which is either always good or always bad. So the only constant guidepost should be: what increases liberty.

      2. I think Orin Kerr does a really good job explaining this phenomenon here:

        http://volokh.com/2012/04/09/t…..date-case/

    3. But judicial restraint refers to adhering to judicial precedent, not restraining government powers.

      Of course in translation people tend to ignore the precedents they don’t like when calling for judicial restraint, but let’s not put too much spin on the ball.

      1. But judicial restraint refers to adhering to judicial precedent, not restraining government powers.

        What if the precedent itself was a case of activism?

  2. …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

    Right, because if they affirm it, everyone will be happy.

    1. I think it’s important to note that he agrees the ‘majority doesn’t like it’.
      Only the Top Men would see it as a failure, ergo, it would be a failure.

    2. And most importantly a 5-4 decision in favor reflects broad support while a 5-4 decision against is divisive and narrow. Why are most liberals such mathematical ignoramuses?

  3. Why do I fear if this law is struck down it shall become even more powerful?

    1. I think that fear is unfounded… at least for the next decade or so.

      After this election we will certainly have Republicans in control of the House, possibly also the Senate and/or Presidency. They will block any Democrat attempts at “fixing” healthcare. I don’t even think the Democrats will want to touch healthcare for at least a decade given the pummeling they took after this recent attempt.

    2. Obama wan Kenobi?

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

    I fucking hope so.

      1. Guys, ixnay on the evelrationsay.

        1. Repealing the New Deal is far from revolution. More like a reset, IMO.

          1. revelation, not revolution. my piglatin sucks.

        2. cab driver today told me there were going to be 2 revolutions. the first would be the people against the government and we had a brief chat. then he said the second one would be blacks against whites. It got weird.

          1. Third one is shirts vs. skins

            1. Dammit, man. When can we have men vs. women? I want to be on the winning side at least once.

              1. Gender traitor!

  5. “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.”

    How about economic regulations that are unconstitutional?

  6. Once again the political movement that has exactly two sitting federal politicians to its name (and no SCOTUS jurists) is blamed for the government’s failures.

    1. Nothing to worry about – until we have to wear gold stars.

  7. The Vast Libertarian Conspiracy!

    1. Oops, @H.A.

    2. All 10 of us!

      1. No fair counting the non-purists.

  8. Cognitive Dissonance and/or historical ignorance at its finest.

    Even if we accepted that striking down Obamacare meant repealing the new deal, is it really unprecedented judicial activism, given that most of the new deal itself is rooted entirely in grounbreaking, unprecedented judicial activism?

    “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”

    So, the judges were siding with the Constitution over the popularity of a measure? Sounds like the kind of judicial activism we desperately need.

    This guy can’t be real, can he?

    1. I know. The bullshit density in the quoted paragraph is near 100%.

    2. This guy can’t be real, can he?

      he’s not just real, he’s a law professor, trainer of the next generation of Top Men.

  9. I’m a political libertarian whose fiscal views probably make many Republicans look like New Dealers, so you can guess how I feel about FDR and his economic agenda.

    1. not to mention locking up 100k citizens without due process.

      1. twiddling with the gold standard, and shortshrifting the populace by 30% (hurting the poor hardest, of course).

        1. The reason I think the most important thing to stop is the public school system in large parts stems from FDR. He’s considered the best President of the 20th Century, and usually ranked right below Lincoln as an all time great.

          He’s credited with ending a Depression that did nothing but get worse the entire time he was in office, and then hes credited with winning a war he got us involved in. Leaving aside the concentration camps for the slanty eyed American citizens, the massive and flagrant violations of the Constitution, discarding all of my love of liberty and just looking at utilitarian measurements, hes just plain awful.

          Yet any school child will tell you he saved the country. Somewhere, the communists and fascists who created the American educational system are smiling.

          1. didn’t Truman win the war?

            1. Only if you spell his last name S-T-A-L-I-N.

        2. Signing legislation making marijuana illegal…

        3. FDR devaluing the USD against Gold was one of the few helpful things he did.

          Heresy, I know. I would have preferred the FDR-era Fed not actively engage in deflationary policy, so that the gold/dollar exchange rate didn’t need to be changed, but unelected bureaucrats are some of the slowest to admit they were wrong.

          1. You are clueless. If you were a low income american who was spending 90% of their income on day to day expenses, with a 30% inflation you would then be under water by ~20%.

            If, on the other hand you were an astor and spending 20% of your income on day to day expenses, with a 30% inflation your saving/investing/leisure margin would go from 80% to 70%, which is only a 15-ish percent decrease.

            So, cthorm. Why do you hate the poor?

          2. Stealing gold wasn’t OK. Fuck him.

  10. If the Obamacare case depended on getting the court to overturn Wickard v. Filburn, West Coast Hotel v. Parrish, or US v. Carolene Products, it would never win. The trick was finding a credible way to differentiate from those cases.

    And in fact, by robbing the Supreme Court of a fig leaf of constitutional safeguard, the case puts the burden on the US to explain why this law is constitutional. Whereas the Court will continue to pretend that the other New Deal cases preserve some line in the sand checks against absolute government, the argument for Obamacare basically assumes that the government can by default regulate anything.

  11. This isn’t any sort of analysis, this is working the court. Could the DC media be any more shameless?

    1. Could the DC media be any more shameless?

      I’m suree we’ll find out between now and November that yes, they sure can.

    2. Could the DC media be any more shameless?

      I’m sure we’ll find out between now and November that yes, they sure can.

  12. “…in the name of hotly conservative economic doctrines that a majority of the country didn’t favor.”

    Funny, I had the impression that Obamacare was also something that a majority of the country didn’t favor.

  13. We live in a crazy world when someone with a law degree can seriously believe that upholding the Constitution is considered “activism” while allowing gross overreaches of government is “conservatism.”

    1. Well, it kind of is if you think about it. After all, the government has been overreaching for decades now. Allowing them to continue to overreach is the status quo, and hence a conservative position under the original meaning of the term.

  14. I also love his choice of wording: “if the Roberts Court strikes down health care reform by a 5-4 vote” and not “if the Roberts Court upholds health care reform by a 5-4 vote.” If the latter occurs than the court was clearly not divisive.

    1. But to most liberals, it is always Republicans/conservatives who are divisive. So, “Bush was the most divisive president in history” AND “the Republicans in Congress today who are pursuing divisive policies.” (This is not to say I’m a fan of Bush or the Congressional Repubs).

      And, this whole issue assumes that divisiveness is bad. This crying about division is still sucking at the teat of those consensus idiots like Hofstadter. As I point out to my students, consensus gave us the 3/5 clause and Jim Crow.

      1. Raven, you do understand the point of the 3/5 clause, don’t you? If you were against slavery and rule by those who supported it, the 3/5 clause was a GOOD thing. It should have been closer to a 0/5 REFUSAL to compromise. The moral shame was that the compromisers let that fraction become as large as it did!

  15. I really despise this sort of bullshit. If ObamneyCare is struck down by the SCOTUS, it’s not the end of the line. The left can always amend the constitution if this is just so damned popular.

    1. Be much easier for POTUS to verbally intimidate the court threaten to expand it to 9 members or more. That’s worked before.

    2. Please illustrate what Romney had to do with PPACA.

      And it better be more than “he used some of the same advisors that Obama did”, which to date is the closest Suderman Co. have come to substantiating their accusation that Romney “paved the way for” Obamacare.

  16. 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.

    An interesting fear, considering the fact that, etymologically speaking, libertarian legal ideas would entail more freedom instead of less, or in other words: Mr. Rosen is showing all the characteristics of an eleutherophobe.

    1. Freedom IS scary to statists. You can’t have people going around doing what they want without some sort of approval from their betters!

  17. If there isn’t a libertarian plot to repeal the New Deal, I’m starting one.

  18. “Is the ObamaCare Legal Challenge Just a Shadowy Libertarian Plot to Repeal the New Deal?”

    God, I hope so. Wickard v. Filburn must fall, and Raich not long afterward. By their mere existence, they mock our ideal of “the land of the free.” And by their continuing, persistent existence, they mock our ideal of “the home of the brave.” Brave people who valued their freedom would have scuttled Wickard decades ago, and never allowed Raich to gain so much as a toe-hold. When will we, the people, redeem ourselves?

    1. There won’t be any redemption, at least not for older Americans. Even as the economic and civil ashes fall I’m not particularly confident our elders, especially the Boomers, will learn anything.

  19. The Court’s justification for devaluing economic rights never amounted to more than “because we say so, bitches.” There’s certainly nothing in the Constitution that elevates certain rights as more important than others.

    The Court does not have return to Lochner-style jurisprudence to recognize economic rights as being fundamental.

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