U.S. Supreme Court justices listened skeptically last week as Solicitor General Ted Olson argued that foreign detainees being held in U.S. military facilities in Guantánamo Bay have no right to seek relief from U.S. courts. Wednesday, Olson will be back before the court, this time arguing in two historic cases that the government has the authority to lock up U.S. citizens, too — without charges, without a lawyer, without a trial, without any rights at all — simply by declaring them “enemy combatants” in the administration’s war on terror.
Having government agents sweep U.S. citizens off the streets and into prison cells, holding them incommunicado for as long as the government likes — it sounds like a dark fantasy of life in a totalitarian state, the kind of thing we’re supposed to be fighting against in Iraq. But this is no fantasy. In the cases of Jose Padilla and Yaser Hamdi, the Bush administration is advancing a vision of governmental power that is both far-reaching and unprecedented, at least in the United States of America. And it is a vision — like the one the administration articulated Tuesday during Supreme Court arguments on the secrecy of Vice President Cheney’s energy task force — that leaves sole discretion, sole authority, and almost unfettered power in the hands of the executive branch.
It’s easy to become blasé about liberties lost in the Ashcroft era. The lines between foreign intelligence efforts and criminal investigations have been blurred; the government has more power to snoop, to search, to study your financial transactions and examine your reading habits; foreigners have been detained, immigrants deported. “There are so many things,” says Elliot Mincberg, legal director for the liberal advocacy group People for the American Way.
But the administration’s arguments in the Padilla and Hamdi cases have activists and analysts on both the left and the right alarmed all over again. Timothy Lynch, director of the conservative Cato Institute’s Project on Criminal Justice, says the Bush administration is advancing a “sweeping theory of executive power” that could lead to “dangerous” legal precedents. “If the administration were to prevail in Hamdi and Padilla, there would be no limit to the number of people who could be arrested here totally outside the normal criminal process, people arrested without arrest warrants, people not going before judges, people being held in solitary confinement in prison facilities right here in the United States,” he said.
The Cato Institute and People for the American Way seldom see eye to eye, but they do here. If the Supreme Court accepts the Bush administration’s arguments in the Padilla and Hamdi cases, Mincberg says, the executive branch of the U.S. government will have “an unlimited right to put American citizens in an indefinite Constitution-free zone.”
Jose Padilla and Yaser Hamdi are already there. For two years, the two men — both U.S. citizens — have been imprisoned in U.S. Naval brigs in Virginia and South Carolina. They have not been charged with any crime. They have not been allowed meaningful access to counsel. They have not been allowed to see their families.
Padilla was arrested on May 8, 2002, at Chicago’s O’Hare Airport. Attorney General John Ashcroft announced that Padilla had been involved in an “unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb.” But Ashcroft’s Justice Department didn’t charge Padilla with any crime. Instead, he was held in custody in New York under the federal “material witness” statute, a law that allows the government to detain individuals who might otherwise flee before testifying in criminal cases. As an inmate in the criminal justice system, Padilla was afforded the rights the Constitution guarantees. He was appointed a lawyer, and he was allowed to meet with her in private.
But when a federal judge in another case held that the government could detain “material witnesses” only for trials — not for investigations, as the government was holding Padilla — the Bush administration apparently grew nervous that its inmate might go free. Two days before Padilla’s lawyer was to argue that he must be released, the government abruptly transferred Padilla out of the criminal justice system and into the hands of the Department of Defense. Padilla was moved from a jail cell in New York to a Navy brig in South Carolina. By the time he arrived, his rights were gone.
Yaser Hamdi was never given such rights to begin with. Like Padilla, Hamdi is a U.S. citizen. But unlike Padilla, he was taken into custody outside the United States and never became part of the criminal justice system. According to the government, Hamdi “surrendered” to Northern Alliance forces while those forces were fighting the Taliban near Konduz, Afghanistan, in late 2001. As government officials note at every opportunity, Hamdi allegedly carried an AK-47 at the time of his “surrender.”
The Northern Alliance turned Hamdi over to U.S. troops. The Department of Defense subsequently transferred Hamdi to Guantánamo Bay, then to the U.S. Naval Brig in Norfolk, Va., and then to the U.S. Naval Consolidated Brig in Charleston, S.C. All told, Hamdi has been in U.S. custody for nearly two and a half years. During that time, he has been allowed a single visit by a representative of the International Red Cross and what his lawyers call “the infrequent exchange of censored letters with his family.” He was allowed to meet with lawyers only once — on Feb. 3, 2004, more than two years after he was taken into custody, and even then with government monitors listening in.
In briefs filed with the Supreme Court, the Bush administration makes the circular argument that “enemy combatants” like Hamdi and Padilla aren’t entitled to counsel because the government hasn’t charged them with any crime. Moreover, while Padilla apparently met with counsel without dire consequences early on in his case, the administration now says that providing “enemy combatants” the right to meet with lawyers would create unacceptable risks. Maybe they would use their lawyers as conduits for messages to al-Qaida. Or maybe allowing them access to lawyers would disrupt the feelings of desperation that might otherwise make them believe that they need to cooperate with their interrogators if they ever want their freedom.
In the criminal justice world, that’s one of the benefits of ensuring that defendants do have counsel — access to counsel ensures that defendants know they have rights, that they do not have to incriminate themselves, that they are not dependent entirely on the favor of their jailers. But in the cases of Jose Padilla and Yaser Hamdi, these anti-coercive principles have been turned upside down.
In an extraordinary document the government has filed in Hamdi’s case, the acting commander of the U.S. military facilities at Guantánamo Bay says that military interrogators are working to instill in their subjects feelings of “dependency and trust” that will compel them to volunteer damning information. U.S. Army Col. Donald Woolfolk explains in his declaration: “Disruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic.”
But the central question in the Padilla and Hamdi cases isn’t whether they have the right to counsel; it’s whether the government has the right to hold them at all in the legal never-never land it has created.
For the Bush White House, that power is self-evident. In briefs filed with the Supreme Court, Solicitor General Olson — whose wife, conservative commentator Barbara Olson, was killed on 9/11 — argues that the president’s constitutional authority as commander in chief grants him the “inherent” power to hold even U.S. citizens as enemy combatants. “It is well-settled that the President’s war powers include the authority to capture and detain enemy combatants in wartime, at least for the duration of the conflict,” Olson argues in the Hamdi case.
Deborah Pearlstein of Human Rights First (formerly the Lawyers Committee for Human Rights) says the government could clearly bring criminal charges against Padilla if it wished to do so. That might be more difficult with Hamdi because he was captured abroad, although the government did use the criminal justice system to prosecute John Walker Lindh, another U.S. citizen captured in Afghanistan. But even if the government could not prosecute Hamdi criminally, it could hold him as a prisoner of war.
But if the government were to hold Padilla or Hamdi as prisoners of war or criminal defendants, it would have to provide them the rights such a status would require. The Geneva Convention provides protections for POWs. The U.S. Constitution protects criminal defendants. The government may fear that bringing criminal charges against Padilla would require it to make captured al-Qaida members available as witnesses in court, thereby limiting their future usefulness as informants in the war on terror. Or the government may simply fear that it lacks the facts to win a conviction against Padilla in a criminal case, with its “beyond a reasonable doubt” standard of proof. By declaring Padilla and Hamdi “enemy combatants” the government has created a category of detainee for which it can claim there is no instantly applicable set of legal rules.
“The term ‘enemy combatant’ doesn’t appear in any of the controlling bodies of law we have, doesn’t appear in the U.S. Constitution, doesn’t appear in any applicable statute or the Geneva Convention,” Pearlstein said. “As soon as you say ‘enemy combatant,’ you need to explain what you mean because there’s no generally accepted definition.”
As Pearlstein acknowledges, the term “enemy combatant” does appear in the 1942 U.S. Supreme Court case of Ex Parte Quirin, but the court mentions the term there only in passing. It offers no definition, and it does not describe the legal protections to which enemy combatants are — or are not — entitled. Moreover, Quirin was decided long before Congress adopted a statute prohibiting the imprisonment or detainment of any U.S. citizen except pursuant to an Act of Congress.
Nonetheless, the Bush administration relies heavily on the Quirin decision in the Padilla and Hamdi cases, arguing that it provides solid legal precedent for the administration’s detention of citizens whom the president deems enemy combatants — a term the administration defines as encompassing any individual who “was part of or supporting forces hostile to the United States or coalition partners, and engaged in armed conflict against the United States.”
Thus far, the courts are divided on the propriety of the administration’s actions. In Padilla’s case, the U.S. Court of Appeals for the 2nd Circuit held that the government may not hold a citizen indefinitely simply by declaring him an enemy combatant. In Hamdi’s case, the U.S. Court of Appeals for the 4th Circuit reached the opposite conclusion. The 4th Circuit is widely considered the most conservative of the federal appellate courts; Cato’s Lynch suspects that the administration chose to detain Padilla and Hamdi in Virginia and then South Carolina precisely because those states are within the jurisdiction of the 4th Circuit, where the administration likely thought it would get the most sympathetic hearing. But even the 4th Circuit has rejected some of the most aggressive variations on the administration’s detention justifications.
In the briefs it has filed in the Supreme Court, the administration argues that the president’s authority — either as commander in chief or under Congress’s authorization to use military force in response to the Sept. 11 attacks — includes the authority to decide who is and who isn’t an enemy combatant, with virtually no oversight or scrutiny by anyone outside the executive branch.
While Olson says that a court may be entitled to hear the president’s “articulated basis” for designating someone an “enemy combatant, the court can consider only whether what the president says about the citizen satisfies the criteria for “enemy combatant” status. The detained citizen has no right to challenge the president’s version of events, and the courts have no power to consider such a challenge anyway.
“All they have to do is come up with a statement that, in some very broad terms, explains what [the detainee] has done,” says Mincberg, of People for the American Way. “They might have gotten the wrong guy. Maybe it was my cousin or somebody that looks like me. When I was 12 years old, there was a kid that looked like me and I got blamed for a lot of things he did. But according to the administration, there wouldn’t be any right to contest the determination the president has made.”
Cara Thanassi, a legislative advisor for the international aid group CARE, said the unilateral nature of the detention designations is particularly dangerous for those who work in organizations like hers. “It would expose aid workers in combat zones to the possibility of being indefinitely detained without any opportunity to have their detention reviewed by a competent tribunal,” she said in a press conference in Washington last week. Thanassi said that she is concerned not just that her colleagues might be detained by the United States, but that U.S. policies denying detainees the right to judicial review could be used as precedent — or payback — by other countries as well.
In the criminal justice system, procedural safeguards protect the wrongly accused. Even in a minor criminal case that carries the risk of only a short prison sentence, a defendant has the right to challenge the evidence against him, to confront and cross-examine witnesses. But in the cases of Hamdi and Padilla, the government has relied solely on the two-page designations signed by George W. Bush and on brief declarations by Michael Mobbs, a “special advisor” to an undersecretary of defense. In the Padilla case, the Mobbs declaration alleges that Padilla met with and received training from al-Qaida members and “was sent to the United States to conduct reconnaissance and/or other attacks on their behalf.” But the allegations rely extensively on third-hand reports of what confidential informants allegedly said, and sometimes not even that. At one point, the Mobbs declaration says only that “it is believed” that al-Qaida members directed Padilla to conduct reconnaissance or attacks in the United States. Believed by whom, special advisor Mobbs does not say.
Because neither Bush nor Mobbs has any firsthand knowledge about Padilla or Hamdi, the actions in which they were allegedly engaged or the circumstances of their capture or detention, their statements about those subject matters are hearsay. In a criminal case, they would be inadmissible as evidence. But in the Hamdi and Padilla cases, these hearsay statements alone provide the sole basis for detention of U.S. citizens — and indefinite detention at that.
In the government’s briefs, Olson dismisses the notion that Hamdi and Padilla might be held “indefinitely.” But as the administration concedes, in the war on terror — a war with no single enemy, a war where there is no one whose “surrender” might signify a clear end to hostilities — it is impossible to know what event might trigger the end of detention. As with the reason for holding Hamdi and Padilla in the first place, the administration advances a “trust us” argument on the length of their detentions. Olson writes: “The military has made clear that it has no intention of holding captured enemy combatants any longer than necessary in light of the interests of national security …”
During oral arguments last week in a case concerning the rights of noncitizen detainees held at Guantánamo Bay, the justices’ questions of counsel suggested that there may be little tolerance on the court — at least among the four liberal-leaning judges and Republicans Anthony Kennedy and Sandra Day O’Connor — for leaving so much discretion in the hands of the administration. Mincberg was at the court for the argument last week, and he said he left feeling cautiously optimistic that a majority would push back against the administration’s positions on noncitizens and citizens alike. “I’m hopeful that the court will not uphold this kind of unilateral power,” he said.
Cato’s Lynch is also hopeful, but worried. “It’s an entirely new realm of law that is being tested here,” he said. “We have constitutional protections pertaining to searches and arrests, pertaining to lawyers and imprisonment. If all of that is put away in a box that says, ‘That’s only for criminal matters involving civilian authorities, and these things don’t apply to the Department of Defense,’ then the implications are enormous with respect to liberty for Americans and the way in which that liberty is guaranteed.”
The most important revelation in Jeffrey Toobin’s 10,000-word New Yorker piece on Chief Justice John Roberts’ takedown of campaign finance laws in the Citizens United case is the extent to which modern conservatism is trying to restore the Gilded Age. That was a time when corporations had more rights than individuals, when a conservative Supreme Court did its best to protect those corporate rights, and wealth and corruption ran unchecked. Of course, we live in a neo-Gilded Age, when income inequality is more pronounced than at any time since the Great Depression, and the Roberts court’s decisions in the Citizens United case helps bring us all the way back to those bad old days.
Much is being made of Toobin’s revelations about the dramatic internal political divisions and infighting within the court triggered by the CU decision (more on that later). But what I think is most politically significant in Toobin’s piece is that it shows the dramatic rightward – and backward — march of Republicanism over the last 30 years. In January 1982, Ronald Reagan famously wrote in his diary, “The press is trying to paint me as trying to undo the New Deal … I’m trying to undo the Great Society.” Reagan was anxious to unravel the anti-poverty programs Lyndon Johnson pushed into place (though not Medicare), but he collaborated with House Speaker Tip O’Neill to pass payroll tax increases to stabilize Social Security for the next 50 to 60 years.
Today’s Tea Party, of course, is going after what’s left of the Great Society and the New Deal too, trying to privatize Medicare and Social Security and undo the labor protections passed by Congress and many states in the wake of the Great Depression. But the Roberts court wants to go back even further, to the Progressive Era, when some politicians in both parties recognized that the omnipotence of Gilded Age robber barons had to be curbed – and that campaign finance regulation was a good place to start.
Back then a conservative Supreme Court majority also disagreed with that Progressive reform push. In an 1886 tax case it first held that the 14th Amendment’s equal protection laws applied to corporations. In its 1905 Lochner ruling, striking down a New York law limiting bakery workers to a six-day 60-hour week, it declared such regulations a breach of contract rights, an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” As Toobin observes, “In simple terms, the majority in Lochner turned the Fourteenth Amendment, which was enacted to protect the rights of newly freed slaves, into a mechanism to advance the interest of business owners.”
Progressive era reform also included campaign finance regulation, starting with the 1907 Tillman Act, which prevented corporations from directly contributing to campaigns. The Court let the act stand, but over the years a series of rulings by conservative majorities have managed to establish that money is “speech,” and though contributions could be regulated, expenditures – speech – could not.
Toobin shows decisively that the court could have kept its decision on Citizens United quite narrow. Attorney Theodore Olson wasn’t seeking to strike down McCain-Feingold, but to clarify that it applied to television commercials, not to 90-minute political “documentaries” such as “Hillary: The Movie” (a shriekingly negative “documentary” on the woman who was expected to be the 2008 Democratic presidential nominee). But in oral arguments the conservative justices sought to broaden their purview, and Roberts helped them along. “As the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party,” Toobin writes. “Roberts’s choice was: a lot.”
After taking a shot at drafting the CU ruling himself, he later assigned it to “swing vote” Anthony Kennedy, whose views on campaign finance regulation reliably put him with the conservative majority. Assigned to write the dissent, outgoing Justice David Souter accused Roberts “of violating the Court’s own procedures to engineer the result he wanted,” Toobin says. That’s when Roberts took the extraordinary step of asking that CU be re-argued – though with five justices already committed to a sweeping attack on McCain-Feingold, the outcome of those re-arguments were never really in doubt.
And indeed, Kennedy again wound up writing the majority opinion, which found that “The Court has recognized that First Amendment protection extends to corporations” since 1886, and that in McCain-Feingold “the Government has muffled the voices that best represent the most significant segments of the economy.” It’s unclear from the context whether Kennedy is saying what he seems to be – that corporations “best represent the most significant segments of the economy.”
Justice John Paul Stevens, a moderate Republican once on the court’s more conservative end, wrote in his dissenting opinion, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Stevens’s dissent continued for a record 90 pages.
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Toobin’s conclusion is no less scathing: “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”
It’s worth noting that the most spirited opposition to Citizens United is coming from Montana, where the ties between Gilded Age corporate abuse and campaign finance regulation are perhaps the most explicit. Copper mining interests essentially owned the state in the late 19th and early 20th century, but Montana Progressives pushed a tough campaign finance law as a way of clawing back control of their state from the “copper kings,” who Mark Twain wrote “bought judges and legislatures as other men buy food and raiment.” Montana’s state Supreme Court upheld that 1912 “Corrupt Practices Act” in January, putting the state on a collision course with SCOTUS. Gov. Brian Schweitzer has been one of the most articulate voices against Citizens United, and supports a state ballot initiative that would ban corporate money in politics and make it state policy that corporations are not people.
“Montana’s going first, but we have before,” Schweitzer told the Huffington Post earlier this month. “It was Montana in 1912 that banned corporate money from our elections. We don’t mind leading and we believe it has to start somewhere. This business of allowing corporations to bribe their way into government has got to stop.”
But in a world where the Citizens United decision is precedent, it’s hard to imagine that ballot measure surviving a legal challenge. Toobin’s piece makes clear the stakes in the 2012 presidential race as vividly as anything else does: American democracy can’t survive the appointment of more justices like Roberts, Sam Alito and Antonin Scalia, who mainly serve the interests of corporate America. Mitt “Corporations are people, too, my friend” Romney can be expected to give them company in the years to come if he wins the White House.
Ruth Marcus is unsettled. Maybe even queasy. There is probably some light nausea. What has her worried for the future of the nation, today? President Obama’s shameful, horrific, vicious attacks on those nice people in the Supreme Court.
Obama said that the court overturning Congress’ healthcare reform law would be a textbook example of “judicial activism” as “conservative commentators” define it: “that an unelected group of people would somehow overturn a duly constituted and passed law.” And hey, that seems like an eminently defensible and not particularly unsettling point! Conservatives made “judicial activism” into a talking point and rallying cry and defined it vaguely enough to encompass judges striking down basically any law or statute.
Marcus, though, is stopped cold.
And yet, Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”
Judicial review, as a former constitutional law professor certainly understands, is not in the Constitution — an unelected activist judge made it up! — and the founders themselves disagreed on the wisdom of the principle. (They tended, in fact, to decide whether or not they liked judicial review based on whether or not the judges ruled in a way that they approved of.) The history of the Supreme Court is replete with nakedly political and mostly conservative rulings until very recently, when we had a brief period of liberal-leaning rulings from a marginally more diverse group followed by a return to status quo conservatism.
As long as the Supreme Court has been making awful and indefensible rulings based on ideology or racism, presidents and politicians have been criticizing the court. Abraham Lincoln attacked the Supreme Court in his first inaugural address, in a passage that conservatives love to quote when they’re attacking “activist judges.”
At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
I am stopped cold and unsettled!
Marcus, hilariously enough, supports the healthcare law and the mandate — she is the world’s most sensitive milquetoast moderate liberal newspaper columnist, after all — which theoretically means she thinks it’s constitutional, which would mean that declaring it unconstitutional should maybe upset her more than criticizing the court for being political, but on the other hand those judges seem very smart and our entire system of government could collapse if we aren’t all super polite to one another and constantly deferential to authority.
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.
Yes, I could tell they were very seriously wrestling with a difficult constitutional question when Scalia began joking around about broccoli mandates and the legendary “Cornhusker Kickback.”
I’m not sure what more the Supreme Court could do before moderates like Ruth Marcus finally acknowledged that it’s a partisan body with a right-wing majority. If Bush v. Gore didn’t do it, maybe nothing could. But as a partisan body it is open to partisan attacks, and our fragile democracy will not descend into anarchy if people think as poorly of the Court as they currently do of Congress.
Of course, the Republican talking point is that the president is attempting to bully the Court into ruling the way he wants. (Because if they strike down the law, he’ll … yell at them during the State of the Union again? No one seriously predicts an arrest warrant for Chief Justice Roberts here.) Mitch McConnell: “This president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.” Lamar Smith: “What is unprecedented is for the president of the United States trying to intimidate the Supreme Court.” Mike Johanns: “”What President Obama is doing here isn’t right. It is threatening, it is intimidating.” (Did you notice how everyone used the word “intimidate”? That’s because they got their language from a memo.)
The only time, besides Lincoln’s suspension of habeas corpus, that any president has seriously threatened the independence of the Supreme Court was when Franklin Roosevelt tried to amend the law to give the president the power to appoint more justices. And Roosevelt, frankly, was right on the merits of his proposal. The court is completely unaccountable and ridiculously powerful, it always has been, and pointing that out does not a constitutional crisis provoke.
On Monday, we had another example of the Supreme Court’s ideological division: a 5-4 ruling, along partisan lines, giving police the right to conduct strip searches for any offense. This came on the heels of last week’s oral arguments before the Supreme Court about the constitutionality of the individual mandate provision of the Affordable Care Act, which led many observers to predict that the nation’s highest judicial body will strike down part or all of the controversial healthcare reform package. But the hearings were instructive in other ways. They showed once again that political partisanship is closely correlated to a justice’s view of the law. And they proved that the Supreme Court once again is functioning, not as a court, but as a third house of the federal legislature.
The U.S. Constitution, like many state constitutions, really is two constitutions in one. There is the black-letter constitution, which consists of rules about which there is little or no dispute. Most of these have to do with qualifications for representatives, like Article I, Section 3, Clause 1, as amended: “The Senate of the United States shall be composed of two Senators from each State, for six Years; and each Senator shall have one Vote.” Not a whole lot of room for interpretation there.
The other constitution, embedded in the same document, is the Blank Constitution. It is not so much a limit on power as an assignment of the power to fill in blanks left in the text, like the Eighth Amendment’s prohibition of “cruel and unusual punishment.” The need to fill in the blank is admitted even by champions of the “original intent theory,” who must dig up historical evidence of what the drafters and ratifiers might have thought was cruel and unusual punishment at the time of the Constitution’s adoption. The answer is not contained in the text.
Even the basic definitions of powers assigned to different branches of government are blanks that must be filled in. The basic issue in the case of the Affordable Care Act is whether Congress had the power to compel individuals to purchase private health insurance, under the Commerce Clause and the Necessary and Proper Clause of the Constitution. Article I, Section 8, Clause 3 of the Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Article I, Section 8, Clause 18 gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Is the power to prescribe an individual health insurance purchase mandate included in these powers granted by the Constitution to Congress? The Constitution does not specifically say. If the Constitution were easy to amend, like some state constitutions, then it could be more specific — at the cost of having hundreds of amendments, like an imaginary Amendment Number 873: “Congress shall have power to impose an individual mandate to purchase health insurance.” But the federal constitution, for better or worse, was designed to be difficult to amend.
There is therefore no escaping acts of interpretation that are really acts of legislation: filling in the blanks in the text of the Constitution. The only real question, therefore, is how much latitude the federal judiciary should give Congress when Congress fills in the blanks by passing laws.
The Whig Party between the 1830s and the 1860s thought that the federal judiciary should defer to Congress. The Whigs favored a strong, competent federal government and opposed restrictions on federal power in the name of the states. Opposed to the administration of Andrew Jackson, the Whig Party also wanted the powers of the presidency strictly limited. In the Whig view, the federal judiciary should defend congressional power against encroachments by the states and the executive branch, while deferring to the decisions of Congress on matters of federal legislation.
The Whig theory of the Constitution strikes me as a pretty good one. But it rules out judicial activism, which has been embraced at different times by different factions in American politics. Between the Civil War and the New Deal, a pro-business federal judiciary persecuted unions and struck down federal, state and local restraints on corporations. In the civil rights era, liberal federal judges went beyond striking down racist laws to discovering a “right to privacy” in the Constitution that has been used to eliminate or restrict laws against abortion and homosexuality. Whatever you think about the outcomes of these cases, it is clear that the courts in all of them were just making things up.
In the case of the “right to privacy” they weren’t even filling in a blank in the Constitution, because the term does not exist in the text. In Griswold v. Connecticut, the 1965 case on which all subsequent federal law involving sex and reproductive rights including Roe v. Wade has been built, Justice William O. Douglas wrote that while the Constitution said nothing about contraceptives the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The right to privacy is a penumbra from an emanation — in other words, it is whatever a majority of the Supreme Court says it is at any given moment.
Liberals applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of states to ban abortion or gay sex, and conservatives and libertarians applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of Congress to regulate the national economy. The left and the right endorse judicial activism when it works in their favor and denounce it when it produces what they think are the wrong results.
For my part, I think the Whigs with their theory of judicial deference to Congress got it right. The states have usually been a greater threat to personal liberty and economic growth than the federal government. Yes, the federal government interned Japanese-Americans during World War II and has abused civil liberties in other ways, and before the Civil War some Northern states were more protective of freedom than the slaveholder-dominated federal government. But throughout American history national majorities, acting through the federal government, have more often checked the illiberalism of local majorities.
Economic policy, too, is best carried out at the federal level in a nation with a continental market. The Balkanization of the U.S. economy into 50 separate state economies by state regulations — even good regulations — is something that should be avoided. And as corrupt and partisan as it is, Congress is better equipped to make public policy than judges.
But wouldn’t judicial deference toward Congress and a broad interpretation of congressional power run the risk of majoritarian tyranny over minorities at the national level? The historical record suggests otherwise. The Supreme Court has almost never been ahead of the political branches when it comes to minority rights or individual freedom. The Court intervened in Brown v. Board only when the civil rights revolution was well underway in the streets and in legislatures, and it intervened in Roe v. Wade and recent gay rights cases only when waves of reform were making progress in federal, state and local legislatures. The federal judiciary has often run out with its surfboard to ride a wave of liberation, but it has never caused the wave. Indeed, in the last half-century the same reforms — anti-racism, the liberalization of abortion laws and the rise of gay rights — have taken place at roughly the same time in all advanced industrial democracies, including Britain, which has no written constitution at all.
When they try to fill in the blanks in the Constitution themselves, instead of letting Congress do the job, federal judges cease to be judges and start acting as legislators — incompetent legislators, like the Supreme Court justices who wrestled with issues like adverse selection in insurance policies in last week’s hearings. A number of state constitutions provide for the direct election of state Supreme Court justices by the people. Perhaps the federal Constitution should be amended along similar lines. Why not? If our laws are to be made by a tricameral federal legislature with three branches of the legislature — the House, the Senate and the Supreme Court — we the people might as well be empowered to elect the lawmakers in all three.
This originally appeared on Cedar Burnett's
Open Salon blog. It was written in a response to
a call for essays about people's personal experiences with the Affordable Care Act. Have an Obamacare story of your own? Blog about it on
Open Salon. Dear healthy people,
It’s great that you’re deriving intellectual pleasure from debating Obamacare. I love that this theoretical dance you’re engaged in has no repercussions to you, a healthy individual. I would love to join you some evening for a spirited discussion on the pros and cons of healthcare reform. Maybe over a glass of wine? Heck — over two or three glasses of wine. I’d love to lean forward, my arched brows furrowed, my full lips purple with the stain of a good Zinfandel, and throw out statistics and well-crafted one-liners about the plight of the uninsured, the underinsured, the sick. Those poor, poor sick.
But I can’t.
I can’t because it isn’t theoretical. I am sick. I’m so sick I can’t drink. I can’t drink and I can’t eat half the things a normal person eats and when I hear the word “Obamacare” hissed in snide derision I want to put a golf club through the windshield of the nearest Mercedes-Benz.
I’m 33 years old. I was diagnosed with an autoimmune disease called ulcerative colitis when I was 26.
Ulcerative colitis isn’t a disease people like to discuss. Most of what we experience is so embarrassing that many of us don’t tell people what we’re going through. We might tell you we’re “sick,” or “under the weather,” but we won’t tell you how bad it is. We won’t tell you we’ve had constant diarrhea for days, weeks, months on end, that we’ve been throwing up stomach acid, that we can’t eat anything but bagels, and that our joints ache so badly it’s hard to sleep. We won’t tell you how we’re wearing adult diapers under our clothes. We won’t tell you that getting in the car and driving three blocks away is the only activity we can do in an entire day.
But you know what we will tell you? We have to have insurance. We need healthcare and support because ulcerative colitis is a lifetime sentence. You know what else it is? A preexisting condition. Since receiving my diagnosis I have lived in fear of losing my insurance because if I let my insurance lapse, and Obamacare fails, I won’t be able to get it again. Ulcerative colitis and her sister, Crohn’s disease, are up there in the echelons of Scary Diseases Insurance Doesn’t Like to Cover.
I get it, I do. Some of our drugs cost a ton. It’s likely we’ll be hospitalized here and there. And many of us can look forward to bowel resection surgery or colon cancer. We’re expensive and we stay expensive for our entire lives. That’s the sticking point with chronic illness like Crohn’s and colitis: We’re sick but we just keep on living. We just don’t die fast enough.
If the health mandate stays, then the preexisting condition clause goes away. Insurance companies have to take everyone — even me. Lose the mandate and I’m right back to worrying about my care.
In truth, I think Obamacare doesn’t go far enough. My family is still coughing up $900 a month to insure the three of us, since my husband and I are self-employed. That’s pretty unsustainable. But at least the current plan includes a provision that insurance companies have to take me. I may have to pay ridiculous sums to keep my insurance, but I’m not going to live in fear of being dropped.
The last thing a sick person should have to worry about is how to pay for their care. The last thing the parent of a sick child or the child of a sick parent should have to worry about is how to pay for care. People should not have to choose between food and medicine, losing their house or losing their loved one. Let’s hold onto Obamacare as a stopgap, but let’s also work toward the goal of universal coverage.
For those of you who think of the healthcare reform debate in theoretical terms, I warn you: Your day is coming. Sure, you and your family are healthy now, but you might not be tomorrow. Sickness can come out of nowhere and knock your world upside down.
You’d better hope you have decent coverage. You’d better hope you’ve won the genetic lottery and you’ll never find yourself sitting in a flimsy hospital gown on a sheet of wax paper, staring down at your unshaven legs while a doctor tells you you have a golf ball-size tumor in your head or ulcers lining your intestines. You’d better hope Obamacare covers your theoretical ass.
Writing in Salon, Natasha Lennard proposes that with the warm weather we can again expect the Occupy movement to shoot up. Arab Spring, American Spring. She’s right about one thing: Like in the decades before the Arab Spring, it has been a long, cold, American winter. In the 30 years since coming to power here, Republicans have used their initial ascent to power to seal themselves into office as tightly as the pharaohs. Smart commentators have noted how lawless the conservatives are in making substantive decisions, but that’s not the worst of it. The worst of it is how they use their tenure to make it increasingly impossible to oust them.
With this week’s Supreme Court hearings — which will end, liberals worry, with the justices overturning healthcare reform — we are nearing the apotheosis of conservative power. Let us recount how we got here: In 2000, a mob of conservative thugs stopped the vote recount in Florida. And that was before the court got involved, the five conservative justices seizing the election and handing the White House to George W. Bush. Secure in the tenure of their undemocratically selected president, the two older conservative justices, William Rehnquist and Sandra Day O’Connor, retired from the bench. Bush replaced them with two young conservatives, destined, by constitutional design and the miracles of modern medicine, to dominate the court into the foreseeable future. At the Supreme Court, it’s always winter (and never Christmas).
The stunningly inept performance by the Bush administration unforeseeably produced the first Democratic federal government since 1994. Immediately thereafter, the conservative Supreme Court majority ruled that the GOP’s wealthy sponsors could spend an unlimited amount of the money putting conservatives in office. Now, the conservative majority on the Supreme Court, appointed, in part, by the conservative president they put in the White House, is preparing to wipe from the statute books the only piece of meaningful progressive legislation in the last half century, passed during the brief Indian summer of a two-year Democratic majority.
And it’s not just the federal government. In 2010, fueled, in part, by the money the conservative justices unleashed, the conservatives took over state legislatures across the country. In power, they enacted a series of measures that should make Hosni Mubarak blush. They redrew the legislative maps to guarantee that they would hold a majority of the legislatures, state and federal, regardless of whether they failed to gain a majority of actual votes. (The design of the Senate, favoring sparsely populated rural states, already way overrepresents the Republicans.) Using a panoply of legislative strategies, they made it infinitely harder for the Democrats to register their supporters and for the Democratic voters, even if registered, to vote. Voters must be reported within 24 hours of being registered or penalties will be levied on the laggard registrars. Would-be voters must produce a fistful of identity documents, notoriously more common among old white (Republican) voters than the youthful and nonwhite Americans likely to support the Democrats. If they run the registration gauntlet, they must again verify their identity on Election Day, with the same culturally skewed set of papers. In the swing state of Florida, the New York Times reports, the activists have given up registering new voters: Too perilous.
True, the Democrats have not been models of political virtue. Cowardly when confronted by their powerful adversaries, confused about the moral grounding of their political vision, faithless to their allies, racketing from one trendy policy initiative to another, without anything resembling long-term planning — with enemies like the Democrats, who needs friends? But blaming the victim is way too easy. Democrats made the mistake of behaving as if the American rules of representative government still applied. Confronted with the lawless conservative Republicans, their fate was sealed.
John Roberts (Credit: AP/Pablo Martinez Monsivais) 
(Credit: AP) 
Antonin Scalia, John Roberts and Clarence Thomas 
Supporters of health care reform stand in front of the Supreme Court in Washington, Wednesday, March 28, 2012, on the final day of arguments regarding the health care law signed by President Barack Obama. (AP Photo/Charles Dharapak)(Credit: AP) 
Clarence Thomas, George W. Bush and Antonin Scalia (Credit: AP) 
