Obama's clash with the Supreme Court brings the proper role of government into focus in time for the elections

By Robert Maynard

I recently posted a piece which noted that the issue of federalism was at stake in the Supreme Court decision regarding Obamacare. Now, thanks to Obama's clumsy challenge to the court's right to strike down such bills, the proper role of government as defined in our constitution is sure to play a leading role in the coming elections. The Obama Administration once again asserted that:

It would be unprecedented in the modern era of the Supreme Court, since the New Deal era, for the Supreme Court to overturn legislation passed by Congress designed to regulate and deal with a matter of national economic importance like our health care system," White House Press Secretary Jay Carney said today. "It has under the Commerce Clause deferred to Congress's authority in matters of national economic importance." Carney also said that Obama does not regret making the comment.

The author of the article points out that this assertion is not factually accurate:

But Carney's history is incorrect. "Jay, that's not true," CBS's Norah O'Donnell countered. "There are two instances in the past 80 years where the president — where the Supreme Court has overturned [laws passed on the basis of the Commerce Clause]: US vs Lopez and US vs Morrison."

The Lopez case, decided in 1995, involved Congress's authority to regulate schools under the Commerce Clause. The Supreme Court ruled against Congress.

I think that this discussion misses the point. It may not be unprecedented for the courts to take such an action, but it is not a frequent occurrence either. The fact that the questions asked by Supreme Court Justices indicate that they may just be thinking of doing so raises the question of whether the "unprecedented" action was the degree to which Obama and the Democrats ignored the limitations that the constitution places on the federal government. Surely the court has allowed the federal government to expand beyond what our framers had intended, but there just might be a limit to the extent to which they will allow such expansion to continue.

In addition, I find it highly unlikely that Obama is ignorant of Supreme Court history. It is more likely the case that he is provoking a showdown with the court over the proper role of government as the elections draw near. He is on record as opposing the founding view of the government's role being constrained to protect "negative rights." Here is his thoughts on the matter in a statement made to WBEZ-FM back in 2001:

But," Obama said, "The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it's been interpreted, and Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn't shifted.

In other words, even to supposedly radical Warren Court was not radial enough in breaking from the constraints put on our government by the our founders. He went on to lament the left's reliance on the court as an instrument to promote social justice:

Obama added, "one of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways, we still stuffer from that."

In other words, real radical change is to come through "community organizing activities." The court is too conservative an institution in his view to "bring about redistributive change." That is true even of the Warren Court. I think that he is provoking this showdown as a way of getting his community organizers "organized" and getting their focus on "community organizing activities," rather than on the courts as it has been. The problem for him is that the American public as a whole does not appear to be with him on this. He over reached in ramming through Obamacare and the public reacted to this over reach in the 2012 elections. I would like to suggest that he is over reaching again and is likely to face a similar public backlash in November. In the meantime conservatives can take heart that this vital issue will be front and center in time for the coming elections.

© Robert Maynard