Federal Judiciary

The Attorney Generals' Initiative -- By: Stephen Spruiell

With Joe Biden?s joyous f-bombs still echoing through the White House?s East Room, the attorneys general from 13 states filed a lawsuit in federal court yesterday to challenge the constitutionality of Obamacare. (A 14th, Virginia?s Ken Cuccinelli, filed a separate suit.) Texas attorney general Greg Abbott, one of the group of 13, argues that they are ?acting out of a sense of necessity: If this legislation is upheld, it will mean that the Constitution as we know it no longer exists.?

Abbott?s arguments parallel those of attorneys David B. Rivkin Jr. and Lee A. Casey, who are assisting on the lawsuit. Rivkin and Casey have been making the case for months that the individual mandate is unconstitutional. This provision would require nearly all Americans, as a condition of citizenship, to purchase health insurance or else pay a punitive tax. Congress simply does not have the authority, under the Commerce Clause or any of its other enumerated powers, to force citizens to buy a product they don?t want to buy, or to enforce through taxation a regulation that it could not otherwise impose.

The argument will now be tested in court, thanks to these state attorneys general. ?The Constitution drafted by our Founders,? Abbott says, ?the Constitution most Americans understand, is one that provides Congress with limited powers and reserves most of the powers to the individual states.? But the Commerce Clause has served as Congress?s way around the doctrine of enumerated powers ever since the Supreme Court lost its nerve in a showdown with Franklin Roosevelt over his New Deal legislation. The Commerce Clause has been ?let out? to accommodate the present size of government; were government to shrink back to the size conservatives prefer, the Commerce Clause would hang from it like Jared from Subway?s old pants.

The Supreme Court has, for instance, taken the view that even a local, non-economic activity such as growing cannabis for personal consumption can be prohibited by Congress under the Commerce Clause (which only gives Congress the power to regulate interstate commerce -- the Founders? intent was to allow Congress to prevent the states from engaging in crippling trade wars). The theory here is that the home-grown variety displaces black-market marijuana, which is traded across state lines, thus giving Congress the power to regulate it.

But the individual mandate goes even farther than that, arguing for the first time that Congress can tell the individual who is minding his own business that he must engage in a particular commercial activity or else pay a penalty tax. ?Never has a court upheld such an expansive view of the Commerce Clause,? Abbott says. ?If the Commerce Clause can be allowed to permit Congress to force Americans to purchase a good or service, there really is no limit to congressional power.?

But wouldn?t a Supreme Court decision striking down parts of the legislation represent -- gasp! -- judicial activism? Some liberals have preemptively labeled as hypocrites conservative critics of activist courts if they support the AGs? lawsuit. To Abbott, the charge ?rings hollow, because the truth is, challenges are brought all the time -- under the Commerce Clause, for example -- and in fact twice in the last 15 years the Supreme Court has struck down legislation as going beyond the scope of the Commerce Clause.? (Although it has also, I should note, often deferred to Congress on this issue: cf. Alberto Gonzales and the case of the home-grown grass.) More importantly, Abbott notes, ?It would be offensive to suggest that acts by Congress should never be challenged in court. It would mean that Congress is not a co-equal branch of government but a dictatorship, and I assume most Americans don?t want that.?

Conservatives should temper their optimism with regard to the lawsuit. For one thing, the Supreme Court has not since the New Deal shown much eagerness to strike down big, landmark pieces of legislation. For another, even if it ruled against the individual mandate, the other pillars of Obamacare would stand -- though the edifice would suddenly become even shakier.

?If the legal challenges fail,? Abbott says, ?the first sphere of action, which may even take place before the legal challenge matures, will be the next election cycle. The majority of Americans who were strongly against this health-care bill have the opportunity to vote new members into Congress who can repeal or modify it.?

The democratic solution would be preferable to the judicial one. But the overturning of laws that run counter to the plain meaning of the Constitution is not ?judicial activism? -- a phrase conservatives reserve for the process by which justices invent new constitutional rights and powers where none existed before. When Congress is the one inventing new powers -- such as the power to force us all to buy expensive health insurance -- that is (as Vice President Biden might say) a big f?ing deal -- one the courts have every right to check.

-- Stephen Spruiell is an NRO staff reporter.

Full post as published by Bench Memos - National Review Online on March 24, 2010 (boomark / email).