The first Monday in October ushered in the Supreme Court’s new term. This term marks two tremendous anniversaries — Justice Antonin Scalia’s 25th year on the court, and the 20th for Justice Clarence Thomas. These two jurists are best known for their originalist approach to interpreting the Constitution. Throughout their decades on the court, they have stood as reliable, conservative bulwarks against judicial activism and against the unchecked expansion of the federal government.
This term, Justices Scalia and Thomas may have the opportunity to rule on President Obama’s most brazen expansion of government, his Affordable Care Act, better known as Obamacare. Obamacare is an unprecedented expansion of government power; never before has the government ordered a private citizen to purchase a product based on nothing more than the fact that they are living and breathing. If the government can mandate an individual purchase health insurance, where does its power end? Can it force you to purchase an automobile? Can it dictate which kind of automobile? (Maybe one of those swanky new Fisker electric cars built in Finland, financed with our tax dollars.)
From the day that Obamacare was signed into law, it has been the subject of litigation. Twenty-six states challenged the legislation in a lawsuit brought in Florida. Virginia brought its own challenge. Currently cases challenging the constitutionality of Obamacare have been brought in the Fourth, Sixth and Eleventh Circuits. The Department of Justice has asked the Supreme Court to review the Eleventh Circuit case.
The importance of having Justices Scalia and Thomas on the bench at this moment should not be underestimated. The Obama administration has gone to great lengths to expand the role of government in our lives. Through its legislative proposals and administrative power grabs, this presidency will be marked by its expansion of government. You can bet that President Obama’s appointees to the court share that philosophy. Justices Sonia Sotomayor and Elena Kagan are about as liberal as they come.
One issue frequently before the court, which provides an interesting window into the judicial philosophy of its members, is the Commerce Clause. Justice Thomas, throughout his two decades on the court, has argued for a restrained use of the Commerce Clause; in essence limiting its scope to commercial activity that actually crosses state lines. Justice Kagan believes the polar opposite — she says that the Commerce Clause can be “applied to anything that would substantially affect interstate commerce” (a phenomenon that Justice Thomas notes is “an innovation of the 20th century”). For the sake of limited government with defined powers, let’s hope that her views do not prevail in the forthcoming Obamacare litigation.
During Kagan’s confirmation hearings, she agreed to recuse herself from eleven cases that were pending before the Supreme Court. In her first year on the court the number of actual recusals has expanded to over 20. Unfortunately, Obamacare was not among them. She served as solicitor general, the third-ranking position at the Department of Justice. The solicitor general is the attorney tasked with representing the United States before the Supreme Court.
It is unfathomable to think that Kagan had no role in strategy pertaining to potential challenges to this controversial legislation. We’ve seen a handful of documents released under the Freedom of Information Act which show Kagan’s staff discussing Obamacare, and even her chief deputy, Neal Katyal, planned to discuss with Kagan who should lead the office’s efforts. Katyal noted this case was a priority: “I want to make sure that our office is heavily involved even in the [District Court].”
Justice Kagan exercised the wisdom to recuse herself from over 20 cases in which she had been involved as solicitor general. She should do the right thing and recuse herself from consideration of Obamacare as well. Barring that, the conservative justices are the last, best hope to defeat Obamacare
David N. Bossie is the president of Citizens United and Citizens United Productions, and the executive producer of “America at Risk.”