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 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
updated 5:52 PM EDT, Mon August 18, 2014
Ruben Navarrette notes that this fall, minority students will outnumber white students at America's public schools.
updated 5:21 PM EDT, Tue August 19, 2014
Humans have driven to extinction four marine mammal species in modern times. As you read this, we are on the brink of losing the fifth, write three experts.
updated 7:58 AM EDT, Tue August 19, 2014
It's been ten days since Michael Brown was killed, and his family is still waiting for information from investigators about what happened to their young man, writes Mel Robbins
updated 1:23 PM EDT, Wed August 20, 2014
Sally Kohn says the Ferguson protests reflect broader patterns of racial injustice across the country, from chronic police violence and abuse against black men to the persistent economic and social exclusion of communities of color.
updated 8:42 AM EDT, Mon August 18, 2014
The former U.K. prime minister and current U.N. envoy says there are 500 days left to fulfill the Millennium Goals' promise to children.
updated 9:10 AM EDT, Mon August 18, 2014
Julian Zelizer says the left mistrusts Clinton but there are ways she can win support from liberals in 2016
updated 1:38 PM EDT, Wed August 20, 2014
Peter Bergen says the terror group is a huge threat in Iraq but only a potential one in the U.S.
updated 1:34 PM EDT, Sat August 16, 2014
Mark O'Mara says the way cops, media, politicians and protesters have behaved since Michael Brown's shooting shows not all the right people have learned the right lessons
updated 11:23 AM EDT, Sun August 17, 2014
Retired Lt. Gen. Mark Hertling says the American military advisers in Iraq are sizing up what needs to be done and recommending accordingly
updated 3:41 PM EDT, Fri August 15, 2014
Marc Lamont Hill says the President's comments on the Michael Brown shooting ignored its racial implications
updated 5:46 PM EDT, Fri August 15, 2014
Joe Stork says the catastrophe in northern Iraq continues, even though many religious minorities have fled to safety: ISIS forces -- intent on purging them -- still control the area where they lived
updated 6:26 PM EDT, Thu August 14, 2014
Tim Lynch says Pentagon's policy of doling out military weapons to police forces is misguided and dangerous.
updated 9:15 AM EDT, Fri August 15, 2014
S.E. Cupp says millennials want big ideas and rapid change; she talks to one of their number who serves in Congress
updated 7:57 PM EDT, Thu August 14, 2014
Dorothy Brown says the power structure is dominated by whites in a town that is 68% black. Elected officials who sat by silently as chaos erupted after Michael Brown shooting should be voted out of office
updated 7:49 AM EDT, Thu August 14, 2014
Bill Schmitz says the media and other adults should never explain suicide as a means of escaping pain. Robin Williams' tragic death offers a chance to educate about prevention
updated 11:05 AM EDT, Fri August 15, 2014
Nafees Syed says President Obama should renew the quest to eliminate bias in the criminal justice system
updated 4:24 PM EDT, Thu August 14, 2014
Eric Liu says what's unfolded in the Missouri town is a shocking violation of American constitutional rights and should be a wake-up call to all
updated 3:22 PM EDT, Wed August 13, 2014
Neal Gabler says Lauren Bacall, a talent in her own right, will be defined by her marriage with the great actor Humphrey Bogart
updated 6:56 AM EDT, Fri August 15, 2014
Bob Butler says the arrest of two journalists covering the Ferguson story is alarming
updated 4:35 PM EDT, Wed August 13, 2014
Mark O'Mara says we all need to work together to make sure the tension between police and African-Americans doesn't result in more tragedies
updated 4:06 PM EDT, Mon August 18, 2014
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
updated 7:08 PM EDT, Wed August 13, 2014
Michael Friedman says depression does not discriminate, cannot be bargained with and shows no mercy.
updated 11:25 AM EDT, Tue August 12, 2014
LZ Granderson says we must not surrender to apathy about the injustice faced by African Americans
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT