**Posted by Phineas
There’s an interesting article at The Weekly Standard, by Jeffrey Anderson, looking at the difficulties the Supreme Court faces as it decides what to do about ObamaCare. As Anderson describes it, there are five choices:
- Upholding the law in its entirety;
- Minimally overturning it by striking down just the individual mandate;
- Go a little further by overturning the mandate, plus the closely related “community rating” and “guaranteed issue” clauses;
- Go through the law page by page deciding which part survives and which is overturned;
- Voiding the whole law.
Obviously the first is unacceptable to anyone who cares a whit about the Constitution and the principles on which it was founded. It’s also, thankfully, the least likely result if the questions asked by the Justices during the three days of the hearings are any indication.
But options 2-5 pose problems for conservative justice inclined to overturn the mandate: When dealing with a law this huge in both size and scope, which approach best hews to the principles of judicial restraint/judicial modesty, while still adhering to the Constitution? Options 2-4 pose a couple of problems. The first is that, by picking and choosing among the various parts of the bill, the Court may well leave behind a clanking wreck that does even more harm. The other is that, in doing so, especially in the absence of a severability clause (1), the COurt would wind up acting like an unelected super-legislature and usurping the roll of the elected Congress, something that should give any constitutionalist serious pause. As Anderson points out, none of these choices (except the first) are clear-cut and without question.
My own preference to to void the whole bill; it cannot work without the individual mandate, which itself is clearly unconstitutional. And policy decisions about health-care reform, which is what choices 2-4 amount to, are the duty of the elected legislature, not the Court.
But even these arguments raise a deeper issue; the Court would not find itself confronting these issues if not for the progressive penchant for comprehensive legislation, one bill “to bind them all.” Anderson sums it up neatly:
But we shouldn’t miss the larger point here. The predicament in which the Court finds itself is plainly a product of President Obama and his party’s preference for massive, unwieldy, impossibly complicated legislation—the kind that you have to pass first to “find out what is in it.” Such legislation, as the oral arguments revealed, does not fit within our system of limited government. That’s because, as Charles Kesler has observed, Obamacare violates the basic notion of law in a free society. Kesler writes, “Sometimes the most obvious derangements of our politics are staring us in the face but we don’t see them”—like “calling this voluminous monstrosity a bill. Can you have a bill, a single law, that is almost 3,000 pages long? In the old days, that would have constituted a whole code of laws.”
In other words, it’s not just Obamacare that must go, but rather the whole liberal and progressive notion of “comprehensive” legislation for a nation of 300 million people. Obamacare is the epitome of that confidence in central planning by experts. Whether the Court strikes down Obamacare, or President Obama is defeated and Obamacare is repealed, or the Court strikes down part of Obamacare and a new president and Congress repeal the rest, last week’s historic hearings have made one thing clearer than ever: Attempts at “comprehensive” legislation compromise the very notion of limited government, in which the people’s representatives try to accomplish attainable goals in a free society. Comprehensive legislation is what happens when you have unlimited government. It is that effort, and the attitude underlying it, that need to be repudiated—by the Court and, more important, by the voters this November.
And that points a way forward for conservatives in the coming months: not only concentrating on sending Obama off into retirement , but electing as many limited-government conservatives as possible to Congress who understand a principle related to judicial modesty, but rarely mentioned — legislative modesty. (2) That is, recognizing what the federal government’s proper role is and doing only enough to fulfill that role, not trying to solve every problem (3) that comes down the pike when they’re better left to the states or the people.
Right now, we’re seeing what havoc legislative arrogance can wreak. It’s time to put a stop to it before the harm is incurable. As Marco Rubio said, “If we don’t win this election in November — and we get four more years of Barack Obama — I don’t know what that means … But I know it ain’t good.”
He was speaking of Obama, of course, but it applies as much to the progressive influence on Congress.
(1) Severability is a clause Congress usually inserts to allow the courts to strike down provisions of a law without having to kill the whole thing. There was such a clause in an early draft of the bill, but it was removed, indicating the Democrats were betting the Court wouldn’t strike down the whole law because there was no severability. I’m beginning to think they’ll regret that.
(2) Hence Operation Counterwight.
(3) Or any not-problem, something that isn’t their business, but lets them pander to the voters. Such as the BCS.
(Crossposted at Public Secrets)