Thursday, June 28, 2012

ACA, Court, & Constitution

I've hardly had time to read any of today's Court opinion, but my sister called earlier and asked if I was surprised.  Well, no surprise on my part.

One reason is that for quite a number of years now many justices seem to be operating on the premise that their job is to encourage every one to believe that it is constitutional for Congress to infringe upon economic liberty.  Of course, there are several ways in which the ACA infringes individual economic liberty.  Perhaps for many justices the details of the infringements don't much matter since the Court's jurisprudence over the past several decades has mostly rested upon the proposition that economic liberty is not one of the liberties protected by the Constitution.  In principle, then, today's opinion is no surprise.  Still, prior to the opinion I had hoped there would be enough justices on this Court who would be hard pressed to concoct a reason for why a constitutionally limited government could force people to participate in interstate commerce so that Congress could then regulate what it forced.  This take me to the second reason I was not surprised.

The second reason I was not surprised is that decades ago members of the Supreme Court came to the opinion that the fact that Congress had the power to tax meant Congress could use the power to tax to do what it otherwise could not constitutionally do.  I don't remember exactly, I think this was an opinion that said Congress could create Social Security even though there was no enumerated constitutional power to do so, but I'm not going to look this up right now.  In any case, without having read the opinion yet, this seems pretty much what this Court opined.  That is, the statute's mandated commerce is not constitutional, but since Congress has the power to tax, Congress can impose a tax on a person who does not purchase health insurance.  Therefore, Congress has the power to impose the mandate after all.  I know, I'm making the whole darn mess sound so circular.  But, that's what it sounds to me like what the Court has decided today.  Congress can do what it doesn't have the power to do.  I suppose this will surprise some, but at least one previous Court has reasoned in just this way.  So, no surprise on my part.

All of this reminds me of perhaps a third reason I should not be surprised, and this is because of one of my economist heroes is Friedrich A. Hayek.  Specifically, Hayek opened Rules and Order with:
When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since.  Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers.  In the form in which we know this division of power between legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve.  Governments everywhere have obtained by constitutional means powers which those men had meant to deny them.  The first attempt to secure individual liberty by constitutions has evidently failed.
Constitutionalism means limited government.  But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. . . .
In other words, by 1973 when this was published Hayek was specifically pointing out that our constitutionalism had failed to limit government and protect individual liberty.  So, no surprise when, today, the Court again fails to see in our Constitution the protection of individual economic liberty.  Perhaps this failure of constitutionalism is because so many on the Court over the years have failed to carry out their part in the separation of powers?  That is, for decades now many on the Court seem to have seen their job as saying what Congress does is constitutional because Congress did it.

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