But first, Dr. Barnett's position. In a long and fairly challenging position paper, he writes:
[Discussing the alleged precedent and parallel between the ObamaCare mandate and requiring drivers to purchase car insurance...] What a state (or private citizen) may require of someone using its property is wholly different than what it may do to control their purely private behavior.Bold and unusually optimistic claims. But Dr. Barnett, fine scholar that he is (Prof. of Legal Theory, Georgetown), doesn't leave the issue at an analysis of legal theory. He backs it up by citing recent court cases showing the actual behavior of the SCOTUS.
Today, even voting is not constitutionally mandated. [Ed. note: it is in certain European countries, interestingly.] But, if this precedent is established, Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States.
Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people. For this reason it is highly doubtful that the Supreme Court will uphold this assertion of power.
[And] It is a safe bet that any argument that leads to a conclusion that Congress has an effectively unlimited police power akin to that of states will be rejected by this Supreme Court.
George Will echoes this view when he writes: "But if any activity, or inactivity, can be declared to have economic consequences, then anything can be regulated — or required." He goes farther than this and discusses the false alternative between Progressive and conservative legal thought on the role of judges in the American political system.
Furthermore, judicial review — and the Constitution itself — is largely nullified by a doctrine of virtually unlimited judicial deference to Congress's estimates of what is "necessary and proper" for the regulation of commerce.He goes on to make a negligible error in the following about 'true conservatives' but we can gloss over that. His basic point remains valid when he says:
[J]udicial supervision of democracy troubles people who believe, mistakenly, that the Constitution's primary purpose is simply to provide the institutional architecture for democracy.
Such people believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, "judicial activism."
More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual — basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.[Note: For those wanting to explore that subject further, Dr. Tara Smith has done good work on the topic of which this essay just scratches the surface.]
I'd like to share Dr. Barnett's optimism that SCOTUS would overturn the individual mandate. Further, since the AFL-CIO has now cut a deal with Congress to exempt union members from certain taxes in the bill, the legislation fails on the grounds of equal protection as well. But, despite the cases he cites, the history of SCOTUS in the past 100 years doesn't give me great confidence. They did, after all, ultimately give Social Security and Medicare a pass and the Wagner Act is still law.
So, whether any of that will make a difference to the current court is anybody's guess. (If passed, not a foregone conclusion at this point.) At best, it will likely be a year at least before the whole thing is reviewed. By then, it could have done much damage. Still, the fight ain't over til it's over. And not even then.