The Constitution-in-Exile movement that dare not speak its name
The libertarian legal theorist Randy Barnett is surely right that opposition to the Affordable Care Act’s individual mandate isn’t officially part of a broader effort to dismantle post-New Deal constitutional doctrine — a mythical “Constitution-in-Exile” movement.
It is based solely on refusal to acknowledge an unprecedented, uncabined, unnecessary and dangerous congressional power to compel all Americans to enter into contracts with private companies. In addition to being irrelevant, however, the so-called Constitution-in-Exile Movement is also a myth. … the challenge to the Affordable Care Act has absolutely nothing to do with “original meaning” and everything to do with extending the power of Congress beyond existing Supreme Court doctrine.
This is true as far as it goes.
But one doesn’t have to scratch too deeply to find a more aggressive — or least passive-aggressive — variant of legal revanchism.
Take this legal brief, published in the Texas Review of Law Politics, by Virginia Attorney General and gubernatorial candidate Ken Cuccinelli, the state’s solicitor General E. Duncan Getchell, and its Deputy Attorney General Wesley G. Russell.
Like Barnett says, the Virginia legal trio assure readers that Congress does not require an individual mandate “in order to create, maintain, or enlarge the regulatory welfare state”:
Congress has been found to have plenary power to do that under the taxing and spending powers, and Virginia in its suit has challenged none of what has gone before. In short, the federal government may tax, spend and borrow to the extent of its political will.
So far, so fair: Democrats could’ve enacted Medicare for All if they had the votes. They didn’t. So they erected the creaking halfway house known as Obamacare.
Cuccinelli and co. continue:
Therein lies the problem. The public perception is growing that the United States is dangerously in debt and that its social programs — like those
in the rest of the economically advanced world — are unsustainable. The votes were not there to finance national health care in the usual way, i.e., via a new or higher tax, so the mandate and penalty were brought in.
This violates a foundational bargain of the New Deal era. The Progressive meliorists had argued that they should be accorded constitutional space in which to make a social experiment, agreeing in turn to be judged by the results. The New Dealers carried the experiment forward. Seventy years later, results are in suggesting that the experiment is living beyond its means. The statist heirs to the experiment say that it cannot and must not be curtailed, so now they claim this new power.
You see? There’s no need for a Constitution-in-Exile movement. The thing that Barnett and Cuccinelli and the rest oppose — “Progressive meliorism” — is a failed experiment that’s eventually going to come crashing down around our ears. Obamacare represents its dying breath.
I’m reminded of “Big” Ed Mustapha, the Black Panther-like figure in the “Dirty Harry” sequel The Enforcer who’s “waiting for all you white honkies to blow each other up so we can move right on in”: