A lawyer reader sez there’s a big silver lining for conservatives…

Last updated on: December 30, 2014 at 4:24 pm by Mark Shea

A lawyer reader sez there’s a big silver lining for conservatives… 2014-12-30T16:24:54-07:00 Mark Shea

LOGO Patheos Explore the world's faith through different perspectives on religion and spirituality! Patheos has the views of the prevalent religions and spiritualities of the world.

…to the Obamacare decision. I’m not a lawyer, so you smart lawyerly types can argue about it. He writes:

The Constitution lays the basic groundwork for Congressional power over the nation in Article I. In Art. I, § 8, the Taxing and Spending clause empowers Congress to “lay and collect Taxes, Duties, Imposts and Excise, to pay the Debts and provide for the common Defence and general Welfare of the United States.” A few paragraphs down in Art. I § 8, the Commerce clause allows Congress to “regulate commerce . . . among the several states.” So Congress can (1) Tax, (2) Spend for “general Welfare” and (3) regulate interstate commerce.

In the 1942 case of Wickard v. Filburn, a farmer named Roscoe Filburn was mad about a ridiculous New Deal regulation meant as a price support for wheat that told him how much wheat he could grow on his own farm and feed his own pigs. The Court found that the Commerce Clause let the feds tell Roscoe how to run his farm. Sure, they reasoned, Roscoe’s farm didn’t cross state lines or anything. But *in the aggregate*, if every farmer did what Roscoe was doing, the national, interstate wheat market would be affected.

Wickard v. Filburn is the basis on which the entire post-New Deal edifice of federal Big Gummint was built. No matter what you did, some liberal lawyer would argue that your behavior had a “nexus” with interstate commerce. (In Gonzalez v. Raich, e.g., a California woman growing medical marijuana on her windowsill was told she was acting in interstate drug commerce, so the feds could come after her despite California’s medical marijuana law. Clarence Thomas, a principled state’ rights strict constructionist, voted against that. But Antonin Scalia, a good pro-lifer but otherwise just a G.O.P. hack, was so eager to stick it to some California hippie that he sided with Big Gummint in Gonzalez v. Raich to do so.)

So that’s the background. The last piece is something called the “doctrine of Constitutional avoidance.” It means that given the choice between reading a vague statute as unconstitutional, or reading it as constitutional, a court should defer to Congress and pick the latter reading.

What Roberts did today was apply that doctrine. He said that Obamacare was (1) vaguely written (2) unconstitutional as an exercise of the Commerce power (3) constitutional if the payment to the IRS for not having insurance is read as a tax, since the Taxing power is broader than the Commerce power.

This is a big deal. It means that the next time somebody tries to use the Commerce Clause to expand Big Gummint (as liberals have been from 1942 until now, with only two major lost cases along the way I won’t bore you with–Lopez and Morrison), it will be a lot harder. In the war against Big Gummint, that may be more important than winning today’s battle.

As for Chief Justice Marshall, the war he was in was to establish the right of the Supreme Court (full of Federalist appointees from the Washington and Adams administrations) to judicial review of laws to see if they violated the Constitution. Jeffersonian Democrats argued that the Court was only there as an appeals court in regular cases, not to review laws. Marshall handed Jefferson a victory in a small-time case about leftover D.C. municipal patronage jobs from the Adams Admin. that Secy. of State Madison wanted to give to Democrats instead of leaving for Adams’ last minute Federalist appointees, but used the case to establish the right of the Court to review actions like Madison’s. In other words, Jefferson got the bad news that the Court could review his Admin.’s actions for constitutionality, but the good news that in this penny-ante case, Madison’s actions were constitutional. Here, Obamacare is constitutional as a tax, but the argument of liberals like Justice Ginsburg that the government CAN use the commerce clause to make you buy broccoli, not grow wheat, not grow weed, or whatever, just got a lot more difficult.

Lizzie Scalia is rounding up various reactions from the Leftosphere and what is striking is how many of them are basically saying “Obama won the battle, but Roberts won the war”. And they don’t mean that in a happy way.

Uncategorized

Mailbag

Previous Post

June 29, 2012

The Trouble with All Those "[Fill in the Blank] Pride" Weeks/Days/Months

Next Post

June 29, 2012 As we head into the weekend, remember...

Browse Our Archives

Select a Category Uncategorized

Select a Month May 2020 April 2020 March 2020 February 2020 January 2020 December 2019 November 2019 October 2019 September 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 December 2018 November 2018 October 2018 September 2018 August 2018 July 2018 June 2018 May 2018 April 2018 March 2018 February 2018 January 2018 December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2016 November 2016 October 2016 September 2016 August 2016 July 2016 June 2016 May 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 June 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 September 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009 February 2009 January 2009 September 2006 June 2006 July 2005 April 2005 May 2002 April 2002 0000

TAKE THE

Religious Wisdom Quiz