“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” This has been the primary function of the Supreme Court since Chief Justice John Marshall recognized the court’s check on legislative authority in Marbury v. Madison (1803). This much our current Chief Justice understands. But as so often happens, it is not the power of constitutional review itself but the philosophy of those who wield it that failed the United States last week.
But before lambasting Chief Justice Roberts any more than he has already been – him moreso than those he joined, as he was held to a higher standard to begin with – let us examine his ruling. Though there is certainly discussion to be had about other portions of the opinion – some of them valuable – the primary concern here is the Court’s decision to uphold the individual mandate, and so too Obamacare.
With regards to the government’s argument that the individual mandate could not be upheld under the Commerce Clause (Article I, §8, cl. 3), Roberts deserves credit for rejecting this argument. I quote from his opinion:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to ‘coin Money,’ in addition to the power to ‘regulate the Value thereof’ Art. I, §8, cl. 5. And it gives Congress the power to ‘raise and support Armies’ and to ‘provide and maintain a Navy,’ in addition to the power to ‘make Rules for the Government and Regulation of the land and naval Forces.’ Id., cls. 12–14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary. The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.”
In essence, there was a logic to how the Framers drafted the Constitution. As Roberts points out, “The enumeration of powers is also a limitation of powers, because ‘[t]he enumeration presupposes something not enumerated.’ Gibbons v. Ogden, 9 Wheat. 1, 195 (1824)… If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.” True enough. Those who wrote our Constitution did so carefully. They included each clause for a specific purpose, doing so in such a way that their intent (and so too the proper interpretation of the Constitution) could be followed and understood with as little ambiguity as possible.
Noting this, Chief Justice Roberts found that the government’s argument on this point was unfounded on the principles of the Constitution:
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