Could this be a modern Marbury v. Madison?

Dennis Hale

The very first time the Supreme Court found an Act of Congress to be in violation of the Constitution was in 1803, when Chief Justice John Marshall voided an obscure portion of the Judiciary Act of 1789.  The practical result was that a staunch Federalist office-seeker, William Marbury, was denied the position of Justice of the Peace to which President Adams had appointed him.   Given the partisan heat of the times, everyone assumed that Marshall would figure some way to put another deserving Federalist in office, much to the annoyance of President Jefferson, who would have removed all of them, had he the means to do so.  So the tiny political class of 1801 waited breathlessly for the shoe to drop – and then got a surprise.  Marbury, deserving though he was, had sought relief in the wrong court, Marshall argued, since the provision of the Judiciary Act that gave the Supreme Court original jurisdiction in such cases had altered the jurisdictional division of labor provided by the Constitution’s Article III.  That provision was therefore null and void, as if it had never been.  The Court has a responsibility to defend the Constitution, even against the will of the legislature and the executive.  What Jefferson had feared would happen had not happened; but what he never imagined – a robust exercise of judicial review, heretofore a merely “theoretic” notion – had come to pass, and could not be undone.  Depending on your point of view, American government would now have the counter-majoritarian teeth to make its counter-majoritarian spirit a reality — or the Federalists had launched a coup d’etat from the bench.

What students of government most remember about the Marbury case, of course, is the brilliant exposition of judicial review that the Chief Justice unfolded, bit by bit, as patiently as a good teacher would do in a seminar (and at the same languid pace), in the process making the case for limited, constitutional government as the hallmark of republican rule.  Marshall would write many decisions during his long tenure on the Court, but none would be more important than this first exercise in the science of judicial review.  Some people who imagine themselves political descendants of Thomas Jefferson have still not gotten over it.

These thoughts are prompted by a very quick reading of most of the Obamacare case, National Federation of Independent Business v. Sebelius (it is 193 pages, including the dissents).  I began reading it in a mood of despair, perhaps as many Federalists must have read the decision that, in the end, denied Mr. Marbury the job to which he had been appointed.  I felt that Justice Roberts had betrayed his conservative credentials, possibly because he had been unnerved by the President’s bullying of the Court.  Having read much of the decision, I am still disappointed, but much less so.

At least one news organization was fooled into thinking that CJ Roberts’ decision had in fact rejected the health care law, because of the very clear and forceful rejection of the individual mandate as something unquestionably beyond the constitutional authority of the Congress.  It is easy to imagine why a reporter would have speed-dialed his editor after reading the paragraph that includes the following statement: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”   Eager Federalists may have had the same impression when they read CJ Marshall’s forceful explanation that Mr. Marbury was entitled to his position, that the denial of it constituted a wrong, and that for every wrong there must be a judicial remedy.

But then Roberts simply redefined the individual mandate to make it constitutional, in a way that is so simple, and so obvious, that it must stand as an embarrassment to the simpletons who constructed this law.  Don’t call it a mandate; call it a tax – especially since, as CJ Roberts points out, the offender has to write a check to the IRS.  The Congress obviously cannot compel commerce, or regulate inactivity, but it can impose a tax penalty, if doing so can plausibly be construed to be within the Congressional power to “tax and spend” for the general welfare.  And if it can be so construed, the Chief Justice reminds us, it behooves the Court to do so, in deference to the wishes of the elected representatives of the American people.

At this point, the cheering crowds having the decision read to them must have been deliriously happy, so much so that they may have missed what came next: an evisceration, by a mostly liberal majority (the four liberals plus Roberts), of what may be the most expensive part of the health care law, the Medicaid expansion, which requires states to give free health care to all non-seniors who make less than 133% of the Federal poverty threshold.  It was largely because of this provision that so many states joined the legal challenge to the law.  The mandatory expansion of Medicaid would bankrupt the states.  In terms of its fiscal impact, it is almost certainly more important than the individual mandate.  It is now (mostly) gone, thanks to an unlikely combination of Sotamayor, Ginsburg, Kagan, Breyer – and Roberts, whose decision, like CJ Marshall’s, lays out the fundamental premises of a limited, constitutional regime, in which the Federal government has only enumerated powers, and the States, closer to the people, have the full range of police powers that any lawful government may exercise.  The states may not, therefore, be compelled to spend money, even though they may be induced to do so by all manner of Congressional blandishments.

So: the mandate is now just a tax; the Medicaid expansion is weakened; the liberals have been dragooned into signing a declaration of principles that might have been written by John Marshall himself; and President Obama has just lost the chance to seek reelection by running against the “same undemocratic Court” that put George W. Bush in office in 2000.  President Obama will claim to be happy with this decision, but I’m not at all sure that he will be.

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