The Godfather?

May 25th, 2012

At the outset, let me note that I am in no way diminishing all that Randy has done for the cause, both in the current litigation, and throughout his career. Rather, my point is a bit more broad.

This isn’t Randy’s first Supreme Court battle.  More precisely, this isn’t the first time Randy has argued that an act of Congress goes beyond Congress’s enumerated powers. This isn’t the first time that Randy has argued that the Court’s existing precedents justify cabining the power of Congress. This isn’t the first time that Randy attempted to identify a “limiting principle” among the Court’s existing precedents. This isn’t the first time Randy argued that one commerce clause case is nothing like previous commerce clause cases. This isn’t the first time that Randy has argued that if the Court upholds that act, it would represent the farthest-reaching precedent the Court ever issued.

I speak, of course, about Gonzales v. Raich. Randy argued this case in the 9th Circuit, and argued this case at the Supreme Court.  Randy lost that case. He lost the votes of Justices Scalia and Kennedy. (In some more irony, Randy argued against Paul Clement).

That case registered barely a blip outside the most nerdy of SCOTUS wonks (I vaguely remember Rush Limbaugh praising the federal ban on illegal drugs and an expanded congressional power–oh the irony). There was no movement or force behind him. Just a bunch of fringe libertarians (mostly my friends!) writing amici that no one read.

(I could also mention that 8 out of 9 Justices rejected Randy’s “Privileges or Immunities” clause argument in McDonald v. Chicago.)

I do not raise these points to dwell on the past, or Randy’s defeat. In many respects, I think his experience in Raich gave him the experience and wherewithal to pull this off. Rather, I raise these points to assert that what has made the challenge to the Affordable Care Act so poignant is the movement, which has taken on a life of its own. Also, I think attempts to castigate Randy as some kind of super-villain from the League of Doom are absurd.

From a popular constitutionalist perspective, I think this fact is important to keep in mind.