It is sad to see a worthy polemicist so consumed with ideology that he no longer can appreciate the underlying issues in fundamental national debates. That’s what happened to the Washington Post’s E.J. Dionne Jr. as he watched oral arguments unfold before the Supreme Court on President Obama’s Affordability Care Act. On Thursday, he unleashed a screed against the court’s conservative justices that reflects an unfortunate syndrome among some liberals—equating opposition arguments with evil intent. He argues that justices showing concerns about the Obama health-care act were seeking to arrogate to themselves governmental power that properly belongs to Congress, not to the court.
As Dionne put it, “It fell to the court’s liberals—the so-called ‘judicial activists,’ remember?—to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.”
Mr. Dionne, I should like to introduce you to Marbury v. Madison; Marbury v. Madison, may we present Mr. Dionne.
Dionne should know that the court’s hearings this week—and the conservatives’ questions—were part of a process deeply embedded in our system. The court’s job is to review congressional laws against the strictures of the Constitution. The very idea that the exercise of that responsibility constitutes a trend toward a judicial dictatorship is a perversion of political discourse.
Clever guy that he is, Dionne begins one sentence with: “Senator, excuse me, Justice Samuel Alito.” Again showing his lighter side, he asks, “Tell me again, was this a courtroom or a lobbyist’s office.” He says the justices need to be reminded that “we’re a democracy, not a judicial dictatorship.”
What this reflects is the panic seen in some liberals at the thought that there could actually be some restraints placed on Congress’s prerogative to insert itself into the private lives of citizens. Many liberals simply don’t buy the idea that there can be or should be such restraints. And so we get such polemics as those issued by Dionne.
But one has to sympathize with Dionne and his fellow liberals. The thought of a judicial review of ObamaCare struck them as so preposterous when it first came up that it was hardly worthy of dismissal. But now they see the court taking this review seriously. It might actually strike down the law’s “individual mandate”—or perhaps, heaven forfend, the entire law. This is far too shocking to be easily absorbed into the liberal consciousness.
Power has been flowing inexorably to the federal government over the past seventy years or so, and the question of where the lines are properly drawn is fundamental to our polity in these times. Dionne is good at political discourse, and no doubt he could offer some well-crafted thinking on where he thinks the lines should be drawn. But to attribute irresponsibility to those who want to debate the lines is itself questionable.
That Dionne doesn’t really want to parse the issue of those lines in order to debate it is reflected in this sentence:
The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cell phones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others—often taxpayers—have to pay for.
But we all know that judicial matters often come down to precedents that will be applied down the line, often in unpredictable ways. That’s why the question of where the lines are to be drawn is often so crucial, as it is with the individual mandate. The fact is indisputable that the individual mandate sets a new precedent in the application of the Constitution’s commerce clause—empowering the government to force a person to buy a product in order to bring to that person the government’s regulatory power. The question that should be on everyone’s mind is simply: Where will this lead?
And so we can roll our eyes over the broccoli analogy, but it is not entirely frivolous. The Wall Street Journal’s Thursday editorial noted that U.S. solicitor general Donald Verrilli wasn’t able to explain what kinds of limits could be placed on where that could lead. Wrote the Journal: “Liberal Justices such as Sonia Sotomayor all but begged him to define a limiting principle on the individual mandate and therefore on federal power. He couldn’t—not because he didn’t know someone would ask but because such a principle does not exist.”
The Journal noted Verrilli came closest to a limiting principle when he claimed that everyone will use health care at some point in his or her life, so what’s the big deal with making young people pay more earlier? But this, said the Journal, “is a deeply radical claim,” given that the law is about forcing people to buy health insurance whereas Verrilli’s statement would expand that to allow government to force them to buy actual health care. As the Journal put it, “People who lead healthy lives consume fewer medical services than others, so the government could mandate exercise, a healthy diet, and more.”
One could argue that the Journal’s argument is a stretch, and there’s no doubt that a journalist of Dionne’s talents could put forth such an argument with effectiveness and aplomb. But that’s not what he did. He attacked the justices for doing their job. In doing so, he revealed a bit about how liberals see things when it seems they may not get their way.
Robert W. Merry is editor of The National Interest and the author of books on American history and foreign policy.
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