But the Supreme Court rejected that argument as too sweeping—under the government’s reasoning, there would be nothing that Congress could not regulate as “interstate commerce.” The Court reiterated that point five years later in another case involving non-economic criminal conduct. Amazingly, four dissenting justices in each case embraced the federal government’s sweeping arguments. But the Court seemed to backtrack in 2005, ruling that Congress could ban the mere possession of home-grown medical marijuana, even if it is never sold and was legal to use and possess under state law. Faced with this uncertainty in the case law, judges should return to first principles.
Judges considering Obamacare challenges have clear directions from the Constitution but confused precedents from the Supreme Court. A properly engaged judge would recognize that when precedent is murky, but the Constitution is clear, the judge must side with the Constitution. To side with the government simply because it is the government—as far too many judges do today—is abdication, not judgment.
Government will always push to expand its powers beyond what the Constitution authorizes. The framers understood this and believed the judiciary would be, in James Madison’s words, “an impenetrable bulwark against every assumption of power in the Legislative or Executive.” Whether the Supreme Court will fulfill that duty when it considers Obamacare—where the unconstitutionality of the law at issue could scarcely be clearer—will be the difference between judicial engagement and judicial abdication.