Friday, June 29, 2012

Forests and Trees: Roberts reconsidered

On February 3rd, 1803 the Supreme Court handed down its decision on the case of Marbury v. Madison, as written by Chief Justice John Marshall. It has become one of the great landmark cases of the Court, for it is here that the implied power of Judicial Review--the power of the Court to declare an act of Congress (or the President) unconstitutional and therefore invalid--was absolutely affirmed by the Court. But at the time, in that moment, did Marshall understand the scope of his decision, how far it would reach and how long it would be relevant? History says yes, he probably did. Marshall--and many other jurists of the time--assumed the power was built into the Judicial branch and merely needed to be awakened, so to speak.

Oddly enough, in asserting the power, Marshall ultimately decided the case in favor of the Administration at the time, though he did so by declaring a provision of a Congressional Act unconstitutional. The President--Thomas Jefferson--was, to put it mildly, peeved by the decision. Jefferson believed the Court had no power to compel the Administration (via a mandamus, a written order of the court) whatsoever. But Marshall held that the Court did possess such a general power, but lacked the jurisdiction to use it in this case because--again--the Act granting it such authority was unconstitutional.

Thus, the Administration got the result it wanted, but the Court changed the relationship between itself and the other two branches permanently, putting it (the Court) in a far more active role, when it came to legislation and other acts by Congress and the President, perhaps bringing things into balance. Some would say it even tipped the balance in its own favor. But either way, it is inarguable that this decision continues to reverberate in the American political system to this day.

Yesterday, I argued--on the heels of the Obamacare decision handed down by the Court--that Roberts had made a very foolish statement in his decision, to the extent that he had potentially established a precedent allowing for any sort of "tax penalty" to be established by Congress in order to create am incentive for a desired action (or inaction). And I think that danger still exists, somewhat. But perhaps the emotions of the day got the better of me and I lost sight of the forest for the trees.

Since then, I have read two excellent opinions on the decision. The first is by Tom Scocca at Slate. He argues the following:
The business about "new and potentially vast" authority is a fig leaf. This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do. 
Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.
He makes a very valid point, with regard to Roberts doing exactly what then-Senator Obama was fearful of him doing. Yet now, President Obama is cheering the decision, calling it "a victory for people all over this country." But that's Obama's public face. Unlike Jefferson in 1803, Obama is facing a difficult campaign for reelection. And unlike the Marbury v. Madison decision, the Obamacare decsion impacts the nation as a whole, is an issue that is on the public mind. In private, one can't help but speculate that Obama may feel very differently about the decision. After all, Roberts essentially called the Administration's arguments on the issue wholly wrong. His decision in this regard--supported by the other Conservative-leaning Justices--denies Congress and the President powers they believed they had, as a matter of course. Thus Obama wins. And yet he loses.

The second piece is by Lawrence Solum, a professor of law at Georgetown and well-known advocate of Originalism. Solum argues somewhat similarly to Scocca, though in a more scholarly fashion:
Today, it became clear that four of the Supreme Court's nine justices reject the academic consensus. As Justice Kennedy states in his dissent joined by Scalia, Thomas, and Alito: 
"In our view, the entire Act before us is invalid in its entirety." 
The alternative gestalt is no longer an outlier, a theory endorsed by a few eccentric professors and one odd justice of the Supreme Court. And because Justice Roberts believes that the mandate is not a valid exercise of the commerce clause (but is valid if interpreted as a tax), he has left open the possibility that there is a fifth justice who endorses the alternative gestalt. 
We are only minutes into a long process of digesting the Health Care Decision. But in my opinion, one thing is clear. Things are now "up for grabs" in a way that no one anticipated when the saga of the constitutional challenge to the Affordable Care Act began.
The "academic consensus" Solum speaks of is the idea that Federal power is very close to being unlimited, with only a few specific arenas left wherein States retain supremacy. As Solum describes, the view is that of "an ocean of federal power dotted by a few isolated islands of state sovereignty." The "alternate gestalt" (or alternate concept) he cites is the view that the New Deal expanded Federal Power greatly, but not nearly so greatly as many seem to believe, that even with the additional authority the Federal government assumed, it is still far more limited in the scope of its powers than is commonly understood, even in academia. The "odd Justice" cited, by the way, is Clarence Thomas, the only true originalist on the Court. Or maybe not. For Roberts' decision demonstrates a willingness on the part of a majority to accept far more severe limits on Federal power, to not so much rollback such power as to draw a firm line which disavows the currently common understanding of such limits as close to limitless.


To put it another way, Roberts' decision is an open invitation for challenges to various recent actions by the Federal government as improper assumptions of authority, from decisions by the EPA--and other government agencies--to Executive Orders to Acts of Congress, the doors have been flung wide for all manner of lawsuits questioning assumed powers by the Feds. 


And if Solum and Scocca are correct, the true legacy of the Roberts ruling may be much bigger than anticipated by almost anyone.


Cheers, all.

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