Skip to main content

Liberty lost? The Supreme Court punts

By Stephen B. Presser, Special to CNN
updated 3:51 PM EDT, Thu June 28, 2012
A protester in front of the Supreme Court on Thursday.
A protester in front of the Supreme Court on Thursday.
STORY HIGHLIGHTS
  • The U.S. Supreme Court has upheld the health care law in 5-4 ruling
  • Stephen B. Presser: The ruling unduly expands the reach of the federal government
  • He says chief justice's turning to the taxing power to justify the law is disappointing
  • Presser: It is now up to Congress to reconsider this unwise act

Editor's note: Stephen B. Presser is the Raoul Berger professor of legal history at Northwestern University's School of Law and a professor of business law at its Kellogg School of Management. He signed two of the amicus briefs submitted to the Supreme Court challenging the health care law.

(CNN) -- A little more than 400 years ago a king of England, James I, was informed by one of his judges, Edward Coke, that while the king was under no man, he was under God and the law. This was one of the earliest and most powerful suggestions that our legal system (borrowed from the English) had, as its core principle, that there must be some restraint on arbitrary power. Ours is supposed to be a government, as John Adams wrote in the Massachusetts Constitution of 1780, of laws and not of men.

What the health care ruling means to you

In what will go down as one of the most important Supreme Court decisions of the 21st century, a majority of the justices have affirmed that most noble and important of Anglo-American legal maxims. But the court's opinion, in preserving the Patient Protection and Affordable Care Act, under Congress' taxing power, still gives a virtually unlimited sway to the power of the federal government.

Supporters of the health care legislation celebrate after the Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act in a 5-4 ruling Thursday, June 28. Supporters of the health care legislation celebrate after the Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act in a 5-4 ruling Thursday, June 28.
Health care and the high court
HIDE CAPTION
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
>
>>
Photos: Health care and the high court Photos: Health care and the high court

The court's opinion is a long one, and will be carefully parsed by legal scholars, but the bottom line is not difficult to discern. Chief Justice John Roberts has, whether he makes it clear in his opinion or not, chosen to leave the determination of the scope of Congress' powers to Congress itself, and to the American people, who place their representatives in Congress.

How the Supreme Court voted, what they wrote

Stephen B. Presser
Stephen B. Presser

The argument against the Affordable Care Act was that the individual mandate, by requiring virtually all adult Americans to buy health insurance or pay a penalty, could not be justified under the commerce power, because instead of regulating commerce, the act was an attempt to compel participation in commerce. The chief justice and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito all now concede that that argument was correct, and that there must be some limits to the power of the federal government when it seeks to regulate interstate commerce. This was the clear holding of prior Supreme Court cases as well.

But with the chief justice's turning to the taxing power to justify the individual mandate, what his opinion takes away under the Commerce Clause, is, in effect, given back. This is particularly disappointing, because the authors of the Affordable Care Act, and its defenders, such as President Barack Obama, repeatedly assured the American people that it was a measure that would reduce costs, not increase them, and that the act was not an attempt to raise taxes.

Breaking down the court's decision

Obama: This is a victory for the people
Romney: I'll do what justices didn't
Ruling on individual mandate explained

A tax measure is less politically palatable than an "individual mandate," and had the penalty provisions of the individual mandate been frankly acknowledged to be a tax, it would have been more difficult to pass the act, perhaps even impossible, given the closeness of the margin by which it was enacted.

Some court watchers repeatedly said that the chief justice did not want to render a decision which, by finding the Affordable Care Act unconstitutional, would plunge the court once again into the political thicket it encountered in 2000 with Bush v. Gore. What Roberts has done in this case seems to prove those observers correct.

A health care victory that's only a start

The court has paid some lip service to the principle that ours is a government of laws, not of men, and that the Constitution exists to reign in arbitrary power. There are four Justices -- Scalia, Kennedy, Thomas and Alito -- who seem sincere in that belief. I wish I could say that I believe Roberts is as well.

What the court has failed to do in this case must be corrected by the American people themselves. It is now for Congress, perhaps, to reconsider this unwise act, which unduly expands the reach of the central government, and unwisely restricts the liberty of the American people.

Ruling plays into campaign narrative for both sides

The decision is also a reminder of the sad truth that our constitutional liberties hang by too slender a thread. There is now a new and potent issue to be considered in the upcoming election, and that is, which candidate will have an opportunity to shift the precarious balance of the justices on the court. It is unconscionable for 5-4 majorities to alter the meaning of the Constitution, and to shift the basis Congress has given for legislation. One can only hope that after this November the likelihood of this happening again will be less.

Follow us on Twitter: @CNNOpinion.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Stephen B. Presser.

ADVERTISEMENT
Part of complete coverage on
updated 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 7:03 AM EDT, Fri April 11, 2014
Simon Tisdall: Has John Kerry's recent track record left Russia's wily leader ever more convinced of U.S. weakness?
updated 12:40 PM EDT, Thu April 10, 2014
Mel Robbins says Nate Scimio deserves credit for acting bravely in a frightening attack and shouldn't be criticized for posting a selfie afterward
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
updated 9:45 AM EDT, Thu April 10, 2014
Dr. Mary Mulcahy says doctors who tell their patients the truth risk getting bad ratings from them
updated 9:28 AM EDT, Wed April 9, 2014
Peggy Drexler says the married Rep. McAllister, caught on video making out with a staffer, won't get a pass from voters who elected him as a Christian conservative with family values
updated 7:43 AM EDT, Wed April 9, 2014
David Frum says the president has failed to react strongly to crises in Iran, Syria, Ukraine and Venezuela, encouraging others to act out
updated 4:57 PM EDT, Wed April 9, 2014
Eric Liu says Paul Ryan gets it very wrong: The U.S.'s problem is not a culture of poverty, it is a culture of wealth that is destroying the American value linking work and reward
updated 7:51 AM EDT, Wed April 9, 2014
Frida Ghitis writes: "We are still seeing the world mostly through men's eyes. We are still hearing it explained to us mostly by men."
updated 10:08 AM EDT, Thu April 10, 2014
Chester Wisniewski says the Heartbleed bug shows how we're all tangled together, relying on each other for Internet security
updated 3:26 PM EDT, Wed April 9, 2014
Danny Cevallos says an Ohio school that suspended a little kid for pointing his finger at another kid and pretending to shoot shows the growth in "zero tolerance" policies at school run amok
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT