I adapted my last blog entry into a column that ran Saturday in the American-Statesman. Here are a couple of brief thoughts generated by a few responses to that column:
Opponents of the health care law - of the law’s individual mandate, to be specific - have focused their challenge on the limits the Constitution places on the federal government. While there are limits on the government, the Constitution doesn’t limit federal power to the point where the government is impotent. This is the point Chief Justice John Marshall made when he wrote the majority opinion in Gibbons v. Ogden in 1824 and it’s part of the reason why I quoted Marshall’s opinion in my previous blog entry.
The Founders wrote the Constitution to strengthen the federal government because the weak government created by the Articles of Confederation wasn’t working. So the belief that the Constitution was written solely to limit government is inaccurate. The Constitution expanded government.
That doesn’t mean that there aren’t limits on the federal government. But the primary limits are found in the division of government into separate branches, not exclusively or even mainly in the powers given each branch. …
It’s been widely commented that if the court’s conservative justices strike down Obamacare they will be rendering an activist decision. As The Atlantic’s Andrew Cohen put it, “If the Roberts Court strikes down this law it ought to end any reasonable political debate about the source of ‘judicial activism’ in America.”
It’s not only that precedent should point the court toward upholding the health care law, but that precedent also should place a “heavy burden” on those who want the court to strike down the law. Jeffrey Toobin, writing in the April 9 issue of The New Yorker, takes Justice Anthony Kennedy to task for placing the burden “backward” during last week’s arguments on Obamacare: “The ‘heavy burden’ is not on the defenders of the law but on its challengers. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is — or should be — a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.” …
Obamacare fits my sometimes absurdist view of things. It has flipped the issue of health care for conservatives and liberals, with Republicans fighting an idea - the individual mandate - that originated with conservatives, and Democrats supporting an idea they once dismissed. Does anyone doubt that Republicans would support the individual mandate if it were part of, say, McCaincare, and Democrats would oppose it if a Democratic Congress and president had not passed it? It’s all part of the grand comedy that is politics.
And with that, I’m going to put the issue of health care aside. For now.