Are there limits to congressional power, and if there are, what are they?
Liberal commentators are worried that if Obamacare is struck down by the Supreme Court, the entire edifice involving the regulatory authority of the federal government would be "on the table."
"A decision in the challengers' favor ... would lead to probably an array of attacks on different parts of the federal regulatory state because for the first time, you have five justices who are going to take very seriously limits on Congressional power," Tom Goldstein, publisher of SCOTUSblog, said at a POLITICO Pro briefing just before last week's oral arguments.
"And so, a lot of things that Congress does that maybe framers of the Constitution would have thought are beyond what the true regulation of interstate commerce is -- but which the modern Supreme Court has blessed -- would be back on the table," Goldstein added.
Neal Katyal, who argued the health law case in lower courts as acting solicitor general, said at the same event that a ruling against the law "would be a change in the philosophy of the court that would have untold repercussions for the future. No Supreme Court, at least since the 1930s, has taken such an aggressive step."
Mark Tushnet, a Harvard law professor who has written in favor of the law's constitutionality, predicted that if the justices do strike down some or all of it, they'll try to limit the ripple effect of the decision as much as possible. But he strongly doubts the majority would assert their decision applies only to this case, as the court's unsigned majority opinion did in Bush v. Gore. In that seismic case deciding the 2000 presidential election, five conservatives said their ruling was "limited to the present circumstances."
Others go even further in presenting what to them are worst case scenarios:
"The challenge for the Supreme Court is: If you overturn the mandate on this, it's hard to see where it will end," said Neera Tanden, a former Obama administration official deeply involved in drafting the health law. "They will have a lot of work to do to come up with a rule to strike this down without starting to bring in a lot of other things."
Another proponent of the law, Simon Lazarus of the National Senior Citizens Law Center, has made some of the most attention-grabbing predictions, arguing that throwing out the legislation would usher in a return of the Lochner era. That's a period early in the 20th Century when the Supreme Court invalidated various economic regulations, including minimum wage laws and measures requiring employers to allow unions.
"Is the court going to become a dedicated foe of all manner of social legislation?" Lazarus asked. "If anything amounts to micromanaging rational choices by Congress, it's this. Everyone acknowledges that it's well within Congress's power to regulate the health care market. ... For a court to find a way to overturn that, second-guess that choice, I can't think of a more radical transformation. The court would be basically reneging on the judicial restraint commitment it made in 1937-38 during the Roosevelt era."
This sounds to me like scare mongering. The Supreme Court is being asked to decide if the individual mandate under Obamacare exceeds the authority of congress to create it. In other words, are there, or are there not, limits to the powers of government - even if the exercise of those powers would be a positive good in the eyes of many?
Why this should be considered "activism" is a mystery. SCOTUS is performing the task that it took upon itself in the Marbury v Madison case 209 years ago; it is reviewing a law to determine its constitutionality.The fallout from that case long ago is still with us today in the form of strong, equal but separate branches of government. Yes, we should contemplate the fallout from striking down Obamacare, but the principle still stands; SCOTUS must tell congress "This far, no farther." Otherwise, who will?
The Supreme Court may yet rule that the mandate is constitutional - in which case, I suspect that calls of "judicial activism" on the court will recede on the left. But to claim that only catastrophe can come from overturning Obamacare misses the mark. The US Constitution is all about limits on power, and if the Supreme Court isn't going to define those limits, then no one will.