Weekly Standard: Without Precedent

Mar 20, 2012
Originally published on March 20, 2012 7:04 am

Adam J. White is a lawyer in Washington, D.C.

Ordinarily, judges decide cases by applying the text of laws and the precedents laid down in previous cases. But the Supreme Court is no ordinary court, and the cases that it chooses to decide are not ordinary ones. Cases in which the lower courts disagree; cases of utmost national importance; cases for which there is little precedent or the written law is ambiguous​ — ​this is the Supreme Court's daily fare.

But even among those hard cases, there is a subset that stands out. In late 2005, Barack Obama, then a freshman senator, placed those extraordinary cases at the center of his opposition to John Roberts's nomination for chief justice:

What matters on the Supreme Court is those 5 percent of cases that are truly difficult... [T]he constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances... the critical ingredient is supplied by what is in the judge's heart.

When President Obama began nominating Supreme Court justices, those remarks from his Senate days were distilled into a one-word description of what he was looking for — "empathy" — that made clear his preference for judges predisposed to decide cases in favor of Obama's political sympathies. Obama was in no position to complain that his views were being caricatured, given that his own opposition to Roberts ended with a crude diatribe against Roberts's personal values. Still, despite his liberal clichés, there was truth in his point. When text and precedent are inconclusive, the justices' decisions rest in part on "one's deepest values, one's core concerns," and "one's broader perspectives on how the world works." Not "empathy" — not personal bias for or against particular litigants — but certainly an appreciation for the fundamental principles that undergird our constitutional structure.

Among what Obama called the "5 percent of cases" in 2005 were those questioning "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." As it happens, that very provision​ — ​the Constitution's grant of power to Congress to "regulate Commerce... among the several States"​ — ​is at the center of the Supreme Court case that may define his presidency. Later this month the Court finally will hear the constitutional challenge to the "individual mandate." The requirement that every American obtain health insurance is the key provision in Obama's signature piece of legislation, the Patient Protection and Affordable Care Act, aka Obama-care.

But to think of the Obama-care case (National Federation of Independent Business v. Sebelius, as the lead case is captioned) as just the latest Commerce Clause dispute is to deprive it of crucial context.NFIB v. Sebelius is much more than that. Obama-care entails an unprecedented reformation of the very structure of federal government, one that strains prior doctrines to their breaking point. The Roberts Court will have to make a judgment not just on the basis of legal text or precedent but on something more fundamental.

Once the case is viewed in that light, we can better understand why the issues raised by the litigants vexed a number of prominent conservative judges on lower federal courts who, somewhat surprisingly, declined to strike down the law. Seeing the case in its proper context illuminates why the Court should brake the government's assertion of power now, before the structural and constitutional changes envisioned by Obama-care become effectively irreversible.

While it is more than just a Commerce Clause case, NFIB v. Sebelius does begin with the Commerce Clause. Obama-care's individual mandate requires every "applicable individual" to buy and maintain "minimum essential" health insurance, beginning in January 2014. This exceeds Congress's constitutional power to "regulate" interstate commerce, the mandate's critics argue in the briefs, because "compelling commerce is not regulating commerce." The Commerce Clause may empower Congress to regulate the transactions that persons already are engaging in, they argue, but it does not empower Congress to force persons to engage in commerce​ — ​that is, the buying of insurance policies​ — ​that they would not otherwise undertake voluntarily.

The challengers can point to no Supreme Court precedent striking down a similar federal mandate, but that's only because Congress has never previously enacted such a mandate. The mandate is unprecedented, and the 26 states challenging the law attempt to turn that fact in their favor:

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