This column by ACRU Senior Fellow Ken Blackwell and ACRU Senior Legal Analyst Ken Klukowski was published on July 12, 2012 on The Huffington Post website.
Public officials and pundits are still digesting the Supreme Court’s Obamacare decision in NFIB v. Sebelius. Not yet discussed are the extraordinary implications for the size and role of government in a second Obama term in light of President Obama’s new stump speech, as it is clear there is not a reliable majority on the Court to restrain government power by enforcing the limits imposed by the Constitution.
Most provisions in the Constitution fall into two categories. The first are authority provisions, explaining the structure and powers of government. The second are liberty provisions, declaring certain rights of the people.
The original Constitution had only the former, because the latter were regarded as superfluous. If something was not found in a specific authority clause, it was automatically illegal and beyond the purview of the federal government. Political backlash from the Anti-Federalists and others led to some states threatening to withhold ratification unless a Bill of Rights was promptly added. Likely our fourth president James Madison would have lost his first congressional race to our fifth president James Monroe had Mr. Madison not joined Mr. Monroe’s call to add the Bill of Rights to the nascent Supreme Law.
Perhaps the most revolutionary aspect of our Constitution is that it is a written document. It is written so that all can see what the powers of the national government are, and guaranteeing in the Tenth Amendment that all powers not specifically granted to the Constitution are reserved to the states or the people. This doctrine of enumerated powers is the cornerstone of our constitutional order and the federal system.
We wrote in our second book that if President Obama won a second term, Americans’ liberties would only be as secure as the courts were faithful to properly exercise their power of judicial review to invalidate actions that violate the Constitution. Whether invalidating unconstitutional legislation passed by Congress or unconstitutional executive actions, the courts must not flinch when cases are properly brought to them.
Mr. Madison explained that “ambition must be made to counteract ambition” for checks and balances to work. Each branch must boldly discharge its constitutional duty. Part of the tragedy of the Obamacare decision is realizing that the current membership of the Supreme Court will not exercise robust judicial review.
It appears clear that Chief Justice John Roberts conducts judicial review rigorously only when the liberty clauses of the Constitution are implicated. For example, he invalidated government action when it violated the First Amendment’s Free Speech Clause in Citizens United (campaign finance) and Religion Clauses in Hosanna-Tabor (the ministerial exception), invalidated a federal gun ban under the Second Amendment, and extended that right against state and local gun bans through the Fourteenth Amendment.
But Chief Justice Roberts shows extraordinary deference to the federal government when the actions of the president or Congress are challenged for exceeding federal powers under the authority clauses. First came U.S. v. Comstock (2010), where Justice Kennedy chided the liberal justices and Chief Justice Roberts in giving an exceedingly-broad reading to the Necessary and Proper Clause.
Part of the consternation from the Obamacare decision was seeing Chief Justice Roberts engage in linguistic gymnastics to ignore Congress’ word choice in writing the statute and the president’s televised vows, upholding the individual mandate as a tax despite 200 years of precedent that penalties are not taxes. He also saved half of a Medicaid expansion that coerces the states, and insisted on severing it to save the rest of what was now a misbegotten mutation of Congress’ statute.
This reluctance to unapologetically apply judicial review when authority clauses — rather than liberty clauses — are implicated bodes ill for many current court challenges. There might not be five votes to succeed in challenges to Dodd-Frank, EPA’s cap-and-trade rules, the FCC’s internet-control rules, the recess-appointment challenges, and other power grabs.
Mr. Obama announced on July 6 in Ohio that this election is about a “clash of visions” about the role of government in our lives, arguing for massive entitlements and regulatory controls. If he wins, he will claim a mandate and take federal power to heights we’ve never seen. We can no longer be confident that the Supreme Court will stop him.
Liberty endures only when each branch fully and fearlessly checks and balances the other two branches. Abdicating judicial review empowers President Obama to subvert the Constitution with an imperial presidency, and fundamentally transform the United States to the detriment of future generations.