Barnett on the Individual Mandate and Judicial Minimalism

May 20th, 2012

If the Supreme Court invalidates the individual insurance mandate, it need not call into question any other law that has ever been passed in the history of the United States.  Why?  Because the Congress has never before exercised its Commerce Power to impose a requirement on the American people to enter into a contract with a private company, upon pain of a penalty payable to the IRS.  All the Court need do is confine Congress to the powers it has always exercised, including all the powers it exercised since the New Deal which also includes all the powers that were upheld by the Warren Court.  A decision to invalidate would be the most minimal of minimalist decisions as it would apply to one law, and only one law.

That is a very minimal way of defining minimalist. And this:

The justices know what many readers of the New Republic do not:  Nowhere did the challengers to the ACA ever base their claim on “conservative economic doctrines.”  No. Where.  Our case has always been simply that this claim of federal power exceeds any that has ever previously been authorized by the Supreme Court, and that it is an uncabined, unnecessary and dangerous power to recognize for the first time.

And this, a judicial filibuster?

Rosen’s claim that, unless the conservative justices uphold this new and dangerous power, they are betraying their conservativism is the height of presumptuousness.  If accepted, Rosen’s claim that five justices cannot legitimately invalidate a “big” law unless some of other four go along would create a new, unprecedented, and strictly politically-based filibuster power by a minority of justices.  To equate the invalidation of this deeply unpopular law with the adoption of a economic doctrines “that a majority of the country didn’t favor” is to turn constitutional history on its head.  If the justices are perceived by the public as yielding to this overtly political media onslaught, it would fatally undermine the independence of the Supreme Court. 

In the end, though, I confess that I almost admire Jeff Rosen’s chutzpah.