As policies, Obamacare and George W. Bush’s war on terror have almost nothing in common. They do not address the same subject matter.
Yet from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?
During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.
In fact, the welfare state and the national security state grew up together. The New Deal’s twin was World War II; the Great Society accompanied the Cold War. The federal government’s expansion has protected us from old age, poverty and external threats — while burdening us with taxes, bureaucracy and a certain amount of official snooping.
The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.
Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.
The Bush administration lawyers argued that the Supreme Court could trust the executive branch not to abuse its war powers because the voters could elect a different president if it did. Last week, Verrilli argued that the Medicaid provisions of the 2010 health-reform law will not coerce the states, because “political constraints do operate to protect federalism in this area.”
Just as the Bush administration insisted that the war on terror was a new and unique kind of war, the Obama administration assures the court that the health-care market is unlike any other.
And now a conservative-led majority on the court may strike down Obama’s individual mandate, just as a liberal-led majority struck down Bush’s military tribunals. If so, law professor Orin Kerr wrote on the Volokh Conspiracy blog, “this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted.”
Justice Anthony M. Kennedy was in the majority when the court reined in Bush, and his questions at oral argument last week suggested that he has misgivings about the scope of the health-care-reform law, too.
Kennedy’s mistrust of unlimited government, it seems, knows no limits.
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