It appears clear that Chief Justice John Roberts conducts judicial review rigorously only when the liberty clauses of the Constitution are implicated. For example, he invalidated government action when it violated the First Amendment’s Free Speech Clause in Citizens United (campaign finance) and Religion Clauses in Hosanna-Tabor (the ministerial exception), invalidated a federal gun ban under the Second Amendment, and extended that right against state and local gun bans through the Fourteenth Amendment.
But Chief Justice Roberts shows extraordinary deference to the federal government when the actions of the president or Congress are challenged for exceeding federal powers under the authority clauses. First came U.S. v. Comstock (2010), where Justice Kennedy chided the liberal justices and Chief Justice Roberts in giving an exceedingly-broad reading to the Necessary and Proper Clause.
Part of the consternation from the Obamacare decision was seeing Chief Justice Roberts engage in linguistic gymnastics to ignore Congress’ word choice in writing the statute and the president’s televised vows, upholding the individual mandate as a tax despite 200 years of precedent that penalties are not taxes. He also saved half of a Medicaid expansion that coerces the states, and insisted on severing it to save the rest of what was now a misbegotten mutation of Congress’ statute.
This reluctance to unapologetically apply judicial review when authority clauses—rather than liberty clauses—are implicated bodes ill for many current court challenges. There might not be five votes to succeed in challenges to Dodd-Frank, EPA’s cap-and-trade rules, the FCC’s internet-control rules, the recess-appointment challenges, and other power grabs.
Mr. Obama announced on July 6 in Ohio that this election is about a “clash of visions” about the role of government in our lives, arguing for massive entitlements and regulatory controls. If he wins, he will claim a mandate and take federal power to heights we’ve never seen. We can no longer be confident that the Supreme Court will stop him.
Liberty endures only when each branch fully and fearlessly checks and balances the other two branches. Abdicating judicial review empowers President Obama to subvert the Constitution with an imperial presidency, and fundamentally transform the United States to the detriment of future generations.