Tuesday, July 3, 2012

Rand is Right; SCOTUS Got it Wrong

When the Courier-Journal attacks a conservative, it employs one of two devices:  it characterizes the conservative as either evil or dumb.  The C-J’s most recent attack on Sen. Paul resorts to the latter method. It’s an odd choice for anyone who has ever heard Sen. Paul speak; agree with him or not, the Senator’s intellect is formidable. 

The Courier-Journal condemned Sen. Rand Paul for his criticism of the Supreme Court’s majority opinion, upholding Obamacare as a “tax.” I represented Sen. Paul as amicus curiae in the Supreme Court challenge to the Affordable Care Act.  Sen. Paul argued in his brief that the Individual Mandate violated the Commerce Clause and that the Medicaid expansion provisions violated the Tenth Amendment.  A majority of the Court agreed with Sen. Paul on these issues.  Where Sen. Paul and a majority of the Justices depart, however, is on the Court’s holding that Obamacare can be upheld as a “tax.”

Sen. Paul had noted that “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional.”  
The C-J  mocked Sen. Paul:  “’Justice’ Paul’s verdict flies in the face of more than ample precedent that reveals this usually is the way these things work, especially with majority opinions.  It’s not called the highest court in the land for nothing.” 

Sen. Paul did not dispute that the Supreme Court is the “highest court in the land.”  He did not dispute the finality of the Obamacare ruling in this particular litigation. That is not to say that he or anyone else must agree with the substance of the ruling. The C-J’s fallacy is to confuse finality with correctness. 
Even the Supreme Court acknowledges that once in a while, it gets it wrong. Consequently, the Court reverses itself with some regularity. The Constitution likewise permits Congress to essentially reverse a judicial opinion when Congress determines that the Court misinterpreted Congressional intent (as Democrats did with the Lily Ledbetter Fair Pay Act).  Likewise, the citizenry can jettision a wrongly-decided Supreme Court opinion by amending the Constitution. It’s a cumbersome process, to be sure, but one the Framers included because the authority of the Court comes not from its status as the “highest” or “last” but rather from the just consent of the governed.

President Abraham Lincoln drew criticism from Stephen Douglas similar to what the C-J has heaped upon Sen. Paul. Lincoln condemned the Supreme Court’s Dred Scott decision. In a June 26, 1857 speech on  Dred Scott, Lincoln distinguished between his disagreement with the decision and his respect for the judiciary. “We believe, as much as Judge Douglas (perhaps more) in obedience to, and respect for the judicial department of government.”  Notwithstanding that respect for the Court, Lincoln said “But we think the Dred Scott decision is erroneous. We know the court that made it has often over-ruled its own decisions, and we shall do what we can to have it over-rule this.”

Lincoln went on to note that “Judicial decisions are of greater or less authority as precedents, according to the circumstances.  That this should be so, accords with common sense, and the customary understanding of the legal profession.”  He noted that Dred Scott was a split opinion based on assumptions regarding Black Americans that were factually incorrect.

Lincoln pointed to the example of President Andrew Jackson’s response to the Supreme Court’s opinion on the constitutionality of the national bank.  Lincoln (quoting Jackson):  “If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of the Government.  The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.”

Sen. Paul took an oath to uphold the constitution. He was right to call out the Supreme Court for rewriting Obamacare to save it.  This wasn’t judicial review:  it was a judicial hijacking of the legislative process.  Worse, the Court picked a rationale that the President had specifically disavowed when he assured us that Obamacare is not a tax.  Either the Court is making up constitutional justifications out of whole cloth, or the president has a truthiness problem. 

The C-J’s real problem with Sen. Paul is not that he criticized the Supreme Court but rather the senator’s temerity in taking on Obamacare.  If Sen. Paul had said that the Citizens United decision was wrongly decided, the C-J wouldn’t editorialize against him:  it would send him a free subscription. 

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