Conservative justices may hate Obamacare, but they should not overrule Congress
The Supreme Court's conservative justices deliberating on the health care law known as Obamacare should heed the historical example of Republican-appointed justice, Harlan Fiske Stone. He detested New Deal policies but argued the court had no right to overturn them.
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Stone’s dissent reminded his colleagues that they decide only whether Congress could enact the AAA, not whether it should. Stone argued that the broad language of the tax and spend clause confirmed that the framers meant to grant Congress extensive powers to exercise at its own discretion.Skip to next paragraph
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And rightly so, he exclaimed, for the people can replace a Congress that enacts a dumb law, while only the unelected court’s “sense of self restraint” prevents abuses of its own power. Indeed, Stone’s closing suggested that the court’s decision to usurp Congress’s power over the national economy would ultimately threaten the liberties of the people more than the horrible regulations that the court’s majority feared.
The arguments supporting the AAA’s invalidation closely resemble those made by the conservative justices during the oral arguments that addressed the mandate’s constitutionality. Congress’s constitutionally granted power to enact all laws necessary and proper to regulate interstate commerce plainly authorizes the mandate, a crucial component of regulations designed to increase access to the vast and often indispensable interstate market in health insurance.
But the conservative justices seemed inclined to invent another formal limitation on Congress’s power that the Constitution does not mention, this time to prevent regulations of economic “inactivity” like decisions not to purchase insurance. They suggested that the limitation is necessary to prevent the passage of horrible regulations, like mandates to buy cell phones or broccoli.
As Stone would have recognized, such horrible hypotheticals should not affect the constitutionality of the mandate because the people can simply vote out a Congress stupid enough to enact them. Stone understood that slippery slopes to horrible sounding laws merely provide an excuse for justices to impose on the people a laissez-faire economic philosophy that the Constitution nowhere requires.
The five conservatives on the current court clearly believe that laissez-faire economics are essential to freedom. So did Stone. Indeed, Congressman Harlan Fiske Stone would have opposed the AAA and much of the New Deal. But Justice Stone recognized that when the Constitution authorizes congressional action, his robe did not confer to him the right to overturn a Congress that disagrees with him.
Stone thought he could best protect the liberties he cherished by allowing Congress, and not the unelected court, to choose the nation’s economic policies. Hopefully at least one of the five liberty-loving conservatives on the current court will reach the same conclusion.
Eric Schepard, a graduate of Northwestern Law School and Amherst College, has previously published in The American Journal of Legal History. He has extensively researched the legacy of Harlan Fiske Stone and its relation to contemporary issues.