An ObamaCare legal precedent?

(from The Wall Street Journal, June 28, 2011)

Justice Kennedy gives a boost to the doctrine of enumerated powers


The Supreme Court’s most important ruling this year may have been its unanimous decision in Bond v. United States, which held that individual citizens can challenge federal statutes when they encroach on authority the Constitution reserves to the states. The decision, authored by Justice Anthony Kennedy, has far-reaching implications—especially for the government’s efforts to defend ObamaCare.

The facts of the case were curious, to say the least. Defendant Carol Bond, having discovered that her close friend was pregnant by her husband, sprinkled caustic substances on a mailbox, car-door handle and door knobs. The substances worked: The hated paramour suffered minor burns.

Instead of being held liable under one of the more common federal criminal laws, Ms. Bond was subjected to federal prosecution under a statute designed to implement the Chemical Weapons Convention. In defense, she argued that the law exceeded Congress’s power because its violation required no link to interstate commerce or any other specific federal interest. The government argued that because the state (Pennsylvania) was not party to the suit, Ms. Bond could not defend herself by attacking that law on federalism grounds. The government prevailed in the Third Circuit Court of Appeals.

The Supreme Court disagreed. With an unusual unanimity, the court held squarely that individual citizens have every right to challenge federal laws on the ground that they exceed the limited and enumerated powers vested in Congress by the Constitution. The court stated without equivocation that “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When the government acts in excess of its lawful powers, that liberty is at stake.”

“Fidelity to principles of federalism,” Justice Kennedy further noted, “is not for the States alone to vindicate.”

For Supreme Court watchers, Bond is a profound reaffirmation of the centrality of the state-federal “dual sovereignty” system. That’s why the decision is bad news for those who defend ObamaCare—the most extravagant challenge to that dual system in our history.

In enacting the ObamaCare law, Congress seized for itself the very type of power—the ability to regulate individual conduct regardless of any significant connection to interstate commerce or another legitimate federal regulatory interest—that the Constitution reserves solely to the states. In defending the law in court, the Obama administration has persistently sought to narrow the Constitution’s federalism principles and to trivialize the Supreme Court’s recent decisions supporting those principles.

What Bond makes clear is that those principles and cases are meant to be read broadly to achieve their original purpose: securing “the freedom of the individual” by allowing the states to respond “to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.”

Justice Kennedy’s opinion posits a vision of federalism in which “[t]he principles of limited national powers and state sovereignty are intertwined.” The decision makes it particularly clear that “[i]impermissible interference with state sovereignty is not within the enumerated powers of the National Government.” It adds, “an action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States.”

The long and short of this critical ruling is that, as the various legal challenges to ObamaCare make their way through the courts of appeal, all nine justices have emphatically reaffirmed the importance of the Constitution’s federal architecture and the very real limitations that structure imposes on Congress. Stay tuned as those challenges reach the Supreme Court—as early as next term.

Messrs. Rivkin and Casey filed an amicus brief on behalf of six states in the Bond case, and they represent 26 states challenging ObamaCare’s constitutionality. They served in the Justice Department under Presidents Reagan and George H.W. Bush.



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