Oringally published by Las Vegas Review-Journal.
Most Nevadans have read or heard about the landmark ObamaCare decision on whether Congress has the power to force Americans to buy health insurance.
At its core, the case hinged on whether the United States is a nation whose citizens live under a written Constitution with a federal government limited to the specific powers enumerated in that document. More specifically, it revolved around whether the Constitution's commerce clause gives the federal government unlimited power to regulate any aspect of American life.
As for the perspective of members of Congress on whether they have this power, one view was aptly captured by House Speaker Nancy Pelosi's remark. "Are you serious, are you serious?" Meaning, unquestionably yes.
For some in the political arena, the idea that the federal government possesses limited powers remains a quaint vestige of a bygone era. For the rest of us, the constitution remains the final bulwark for freedom. For constitutionalists in Nevada and throughout the nation, the ObamaCare decision is a blow. The decision, however, does generate some powerful tools on which we, the people, can focus for the coming years.
Chief Justice John Roberts reminded the nation in his majority opinion that in "our federal system, the National Government possesses only limited powers; the States and the people retain the remainder." Further, the opinion decidedly concluded that the individual mandate was outside the power granted Congress under the commerce clause.
Although it is true that the decision ultimately upheld ObamaCare, it did so under Congress's taxing power, not its power to regulate interstate commerce. This is not a distinction without a difference - there is some significance beyond the sheer disappointment for lovers of constitutional liberty.
First, in the year leading up to this case, many legal scholars mocked the argument that ObamaCare was unconstitutional. A decade ago, when I was attending Georgetown University Law Center, the question of limited federal power regarding commerce was treated with, at best, skepticism and often with laughter or disdain.
For decades, many constitutional scholars gleefully cited the seminal case of Wickard v. Filburn to say all economic activity can be regulated by Congress. In Wickard, the Supreme Court upheld Congress's attempt to prohibit a farmer from growing and consuming wheat for his own use on his own farm as a valid exercise of federal power under the commerce clause. The case always gave me a profound sense of sadness because it manipulated our Constitution for a near-term goal and Depression-era political victory - a short game of checkers versus the more strategic game of chess, if you will. This case set an irreversible benchmark for Congress's powers going forward.
It took six decades for the Supreme Court to place any other limits on the commerce power. When the court did so in U.S. v. Morrison and U.S v. Lopez, the legal elite continually narrowed or downplayed their limiting significance. Morrison and Lopez did not concern actual economic activity and most believed that Congress still had carte blanche to regulate anything that could be plausibly said to "substantially affect" interstate commerce. But after the ObamaCare decision, there is now, legally, a limit to the application of the commerce clause even with respect to regulations that could plausibly be said to affect commerce.
This limit is not nearly as great as many advocates of limited government would like but at least the conversation is truly started.
Second, constitutional conservatives were deeply concerned that the individual mandate represented a clear expansion of federal power over commerce beyond even Wickard.
But the Roberts opinion states emphatically that "[c]onstruing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority."
As George Will notes, this "victory will help revive a venerable tradition of America's political culture, that of viewing congressional actions with a skeptical constitutional squint."
While this admittedly is an attempt at finding a silver lining, the theory here is that we lost a battle but made one hell of a chess move to win the war. I ask today from a political standpoint, would Americans stand for the federal government telling a person in Bloomfield, N.M., that she can't grow something on her own land for her own consumption?
This case is a stark reminder that politics will always rule. While constitutionalists revere procedure - because we think that stable and known procedure ensures the most liberty - we must remember that we cannot always play chess and methodically play the long game. Unfortunately, this noble, and indeed higher motivation, will always be thwarted by political force. Sometimes we must fight and win battles in the political arena.
The upshot of this decision is that we can never rely solely on the courts to protect our liberty and preserve our constitutional system. As Chief Justice Roberts said, "It is not our [the court's] job to protect the people from the consequences of their political choices." We must acknowledge that while we are working, running businesses and raising families, the agents of perpetual political change are engaged in the business of politics. We must make politics a larger priority, or in the alternative we must elect people who will fight tirelessly for the preservation of liberty and our Constitution.
For the coming election year, the ObamaCare debate sets up an enduring clash over the role of government. For this debate we can recall a line in Patrick Henry's famous Give Me Liberty, Or Give Me Death speech in which he said, "Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?" In many ways, I predict this decision has awoken the sleeping giant - the silent majority of Americans as they were called during the Nixon years - who want liberty from government more than parenting and care from it.
So what did Chief Justice Roberts do in his opinion? Well, you could say he tried to choose both, but he left it up to we, the people, to ensure that we pick liberty today.
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