As conservatives rack their brains about how to take back the White House in 2012 two likely courtroom victories may eclipse the importance of a Romney win this fall. Supreme Court hearings on the Personal Protection and Affordable Care Act (PPACA) codename Obamacare, and SB 1070, Arizona’s controversial immigration law could define the nature of our political system for decades to come.
The controversy surrounding both cases attracted large crowds gathered outside the courtroom, showing a level of excitement and interest in the Supreme Court not seen since the sixties. By choosing to hear these cases the judicial branch has launched itself into the political fray, sharing in the intense polarization of America’s public square. In a sense, the Supreme Court embodies America. It composes 9 justices – 4 conservative, 4 liberal, and 1 wild card (Justice Kennedy), the conservative leaning independent that tends to render the decisions.
SB 1070 and PPACA are about two completely different topics (immigration and healthcare) that boil down to a singular issue, federal versus state power. PPACA centers around the individual mandate, the right of the federal government to require citizens to buy health insurance, while SB 1070 focuses on the preemptive clause, the supremacy of federal over state immigration law.
Interestingly, after both hearings a common theme has rapidly emerged – a legal sea change may just be underway, something President Obama hinted at when defensively urging conservatives not to press for the kind of judicial activism they often bemoan. Of course the President, an erstwhile constitutional law professor, seems to be conflating activism with judicial review, the primary function of the Supreme Court.
President Obama’s malarkey has extended to the courtroom. Whereas government attorneys made inconsistent and at times incoherent arguments under scrutiny from justices unsatisfied with their positions, the other side seemed to quickly gain the upper hand.
Last month government lawyers came under fire from Justice Kennedy who argued pointedly that compelling Americans to buy health insurance “changes the relationship of the federal government to the individual in a very fundamental way.” Indeed, justices expressed overall concern about the expansive authority PPACA grants the federal government, possibly outstripping constitutional limitations.
Government attorneys fared even worse during Arizona v. United States hearings this past week. One of the memorable highlights occurred when Justice Sotomayor, the first Hispanic justice, remarked “You can see it’s not selling very well” to Solicitor General Donald B. Vorrilli Jr. And for good reason, the federal government is arguing that the states cannot enforce federal law because they aren’t enforcing it themselves, a completely untenable position.
The importance of winning these cases cannot be overstated. Presidents and lawmakers come and go but laws endure. As Alexis de Tocqueville noted almost two hundred years ago “There is no country in the world where the law has a more absolute voice than in America.” The linchpin of liberal dominance in American politics since the sixties has been the “rights revolution” that lay at the heart of it; what Democrats could not win at the ballot box they won in the courtroom. However, if the Supreme Court strikes down Obamacare and upholds Arizona’s immigration law it would decisively halt the relentless growth of federal power unimpeded for almost a century.
Predicting a Supreme Court decision is always precarious business. Both hearings seemed to favor the states but decisions will likely break along partisan lines. Plus Kennedy is well known for his unpredictability, meaning he could lean either way. That being said, there is the sense that the federal government and its advocates are losing momentum, embattled not just in the courtroom but fiscally, administratively, and in the minds of the American people.
If the Supreme Court upholds SB 1070, a host of new states will implement tougher immigration laws based on Arizona’s model. If Obamacare is repealed, the most celebrated achievement of Obama’s administration will have been refuted and another unaffordable entitlement averted. In the end, winning in the courts could do more to arrest the expansion of federal power now and in the future than a moderate Romney administration will.
Cameron Macgregor is a USNA grad and former Naval Officer. He is writing his first book America Resurrected.