Can one confidently predict the editorial view of The New York Times on a “momentous” issue of the day, like ObamaCare in the Supreme Court? Does the sun rise in the east?
Speaking breathlessly from the steps of the Court just after oral argument concluded yesterday, CNN legal analyst Jeffrey Toobin, who like so many others had assured us that the Court would uphold ObamaCare’s linchpin, the individual mandate, called the government’s oral arguments on the issue “a train wreck for the Obama administration.” Risky as it is to predict how the Court will eventually rule, that’s how most other Court-watchers saw it yesterday, too, which meant that the Times had damage to control.
And so today we find the Gray Lady warning sternly that “the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.” At least the good folks on the Times editorial board have some sense of limited government.
The problem, of course, is that it’s misplaced. The question is not whether Congress’s acts are well-founded but whether they’re constitutional. And on that score, the view of the Times is little different than that of then-Speaker Nancy Pelosi, who responded famously, when asked in October 2009 where specifically in the Constitution she found congressional authority to enact an individual mandate, “Are you serious?” which she repeated for emphasis.
Well yes, the question was serious, as numerous suits by some 28 states and others, to say nothing of yesterday’s arguments in the Supreme Court, have made abundantly clear. But you’d never know it from reading today’s Times editorial. Indeed, judging from “the skepticism in the questions from the conservative justices” it appears, the Times writes, that they “willfully reject both the reality of the national health care market and established constitutional principles that have been upheld for generations.”
No, the justices don’t reject the reality of a national health care market, “willfully” or otherwise, nor do they reject the power of Congress to regulate interstate commerce, however much the post-New Deal Court has expanded that power beyond its original purpose, which was to ensure a national market free from unjustified impediments.
What they do appear to reject is the idea that Congress’s commerce power is boundless. That, in fact, was the very point of Justice Anthony Kennedy’s opening question to the government’s lawyer: “Can you create commerce in order to regulate it?” Congress may have the power to regulate (interstate) commerce that already exists. But that power is altogether different from a power to compel a person to engage in commerce so that Congress can then regulate it under its commerce power. That is bootstrapping, plain and simple. Such a power would be unprecedented, as Justice Kennedy went on to say. It would change fundamentally “the relation of the individual to the government.” And that, he concluded, means that the government has “a heavy burden of justification to show authorization under the Constitution.”
But the Times apparently believes that such distinctions are irrelevant. Writing in broad terms throughout, the editors conclude that “if the Supreme Court hews to established law, the only question it must answer in this case is modest: Did Congress have a rational basis for concluding that the economic effects of a broken health care system warranted a national solution?” If that’s the only question, then the proper response to those who ask for more is, indeed, “Are you serious?” And that would mean the end of a Constitution that authorizes a government of delegated, enumerated, and thus limited powers.