One blogger suggested that you’ll see analogies to ‘evil cases’ previously decided by the USOC in order to set the stage for the upcoming decision on Obamacare. Koppelman provides just such an analogy in The 1918 Case That May Have Foreshadowed Obamacare’s Demise at The New Republic.
“What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.”
The approach here is similar to that used in the infamous Presidential remarks about judicial review recently. It selects a desired ends and insists that these ends take precedence over all other matters. There are also threats such as were in those remarks:
“The other, and perhaps most important, analogy is that the challengers to the law, ordinary folk who have been persuaded that they are fighting to preserve their liberties, are likely to be badly hurt if they win. They are frightened of federal power, but they really should be frightened of their “friends” who are trying to shake off government regulation.”
The analogy makes several questionable assertions and ignores inconvenient reality. There is the assertion: “Only the federal government could address the issue, since no state would act on its own. Even states that did not want child labor could not afford to get rid of it if their competitors still had it.” The fact is that child labor laws were created in several states and the movement towards such laws in the states grew. The fundamental idea of federalism as defined in U.S. governance is that it is the states that have such powers, not the federal government. Confusing this concept is being used in the Republican presidential primaries in regards to health care where a governor of a state implementing health care legislation is set as equivalent to a president implementing mandatory health care.
The dishonesty in the analogy is also present in the inversion of authority in its argument:
“Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines.”
The issue is not about rules to strike down federal powers but rather where to find permission for the federal government to assume such power. The Constitution of the U.S. does not restrict the people, rather it restricts the government. If the government wants to do something, it needs to show where it has permission to do so as defined in the Constitution. That is what judicial review is all about as it is where a complaint can force the government to show how it has permission to do something.
The ‘do-gooders’ tend to approach problems from the top yet the history of the United States illustrates that more success is achieved from the bottom up. Prohibition is one example where the Constitution was amended so judicial review was not an issue. It still failed. Federal powers are those of a sledge hammer. That sort of tool is not appropriate when building houses. Federalism is all about choosing the right tool for the job,