Given the controversy arising from President Obama’s preemptive strike against the U.S. Supreme Court—the President said he was confident the court would uphold the Patient Protection and Affordable Care Act (Obamacare) because it would be “ a unprecedented, extraordinary step” to overturn a law “passed by a strong majority of a democratically elected Congress”—most people overlooked a revealing statement made by the President’s lawyer.
In his concluding argument, Solicitor General Donald Verrilli made clear what is at stake in that case, and in the upcoming presidential election—a choice between two fundamentally different visions of the relationship between government and the individual. In what appeared to be the central emphasis of his summation of the government’s case, Verrilli told the Court that the Obama Administration’s conception of liberty stands in stark contrast to that which has guided our constitutional jurisprudence for over two centuries
Illustration by Barbara Kelley
Verilli told the justices, “There is an important connection, a profound connection between [the problem of 40 million uninsured] . . . and liberty.” If the law is upheld, argued Verilli, “people with chronic conditions . . . will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”
Speaking on behalf of the 26 plaintiff states, Paul Clement said “it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” True enough, but not really responsive to Verilli’s assertion that, for many, liberty depends on a public system of guaranteed health insurance. It was a missed opportunity to articulate and defend the true liberty interests at stake in the case.
Generally, the challenge of protecting liberty lies in limiting the abuse of government power—of protecting individual rights from government interference. Verrilli’s argument is founded on a very different conception of liberty. By his view, liberty consists of positive rights guaranteed by the redistribution of wealth through government programs and subsidies. In other words, liberty depends on the grace and generosity of government.
This runs directly counter to the deeply held natural rights philosophy of the American founders. The Declaration of Independence left no doubt about the source of liberty and the relationship between individual rights and government authority:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Consenting to be governed is both an exercise of liberty and an agreement to limit some natural rights so that government may perform the functions consented to—functions that inevitably limit liberty. This reciprocal relationship between rights and government power is recognized in the Tenth Amendment’s guarantee that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.”
Federalism protects the liberty of the individual from arbitrary power.
Accepting that the protection of liberty requires limitations on liberty in the form of government powers did not blind the American founders to the reality that government power is, at the same time, the greatest threat to liberty. To address that threat, they enumerated the powers of the federal government and they agreed to a Bill of Rights with the express reminder in the Ninth Amendment that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” They also created structural obstacles to the abuse of authority by dividing power horizontally among the three branches of government and vertically in the federal system.
This relationship between federalism and liberty, between the security of individual rights and the allocation of powers in the state and federal governments, was recognized by the Supreme Court less than a year ago in Bond v. United States. Writing for a unanimous court in Bond, Justice Kennedy said that “by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
Yet Obamacare’s transparent impositions on liberty were given scant attention in the oral arguments over the law’s constitutionality, notwithstanding the fact that the reason the health-care law has been consistently opposed by a majority of voters is their objection to the individual mandate. People understand when their basic liberties are being compromised.
Except for his dismissal of Verrilli’s “funny conception of liberty,” Clement regrettably had nothing to say about the liberty protecting features of divided government. Michael Carvin, arguing on behalf of the National Federation for Independent Business, did state that “the Framers consciously gave Congress the ability to regulate commerce, because that’s not a particularly threatening activity that deprives you of individual freedom.” Carvin misses the point. As history has demonstrated, there is nothing inherently non-threatening to liberty about the regulation of commerce, unless commerce is narrowly defined in the context of a division of powers between the national and state governments.
Members of the court were somewhat more attentive to the Constitution’s core value of liberty. Justice Kennedy suggested that the usual presumption of constitutionality should give way to a “heavy burden of justification” on government “when you are changing the relation of the individual to the government.” And Justice Scalia reminded Verrilli of the Tenth Amendment’s recognition that “the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people.”
Does the 14th Amendment guarantee positive rights, like access to food and health care?
“The argument here,” said Scalia, “is that the people were left to decide whether they want to buy insurance or not.”
Solicitor General Verilli argued that “to embark on the kind of analysis that my friends on the other side suggest . . . is to import Lochner-style substantive due process.” Lochner v. New York is the much disparaged 1905 case in which the Supreme Court invalidated as a violation of due process a New York State limitation on hours of work in bakeries. Verilli’s comment is of a piece with President Obama’s subsequent invocation of social Darwinism in reference to Congressman Paul Ryan’s budget proposal. Still, the constitutional doctrine of substantive due process has nothing to do with the argument that the division of powers in the federal system serves to protect liberty from the excesses of government.
The Court made clear in the Bond decision that it understands this connection between federalism and liberty—that individuals, as well as states and the federal government, have a stake in the outcome of federalism cases. Though the states and the federal government likely view the Obamacare case as a struggle for power, the Supreme Court’s central concern should be with establishing the division of powers best suited to preserve liberty.
Solicitor General Verrilli’s suggestion that liberty will be denied if the Court fails to uphold Obamacare—thereby withholding affirmative benefits to millions of Americans—is not novel. In the era of Presidents Kennedy and Johnson, many on the left sought to establish constitutional rights to welfare. In 1969, Frank Michelman, writing in the Harvard Law Review, argued that the Fourteenth Amendment’s equal protection clause should be interpreted to guarantee affirmative rights in the form of access to basic necessities like food, shelter, and health care. Two years later, philosopher John Rawls offered a detailed philosophical argument for such welfare rights in his A Theory of Justice.
But that was then. Nearly 30 years later, Jack Balkin argued in the Fordham Law Review that welfare rights are no longer part of anyone’s “ideal Constitution.” He could not have anticipated the Obama administration’s revival of Michelman’s idea in its defense of Obamacare.
Like so many ideas from the political left, and particularly from the academic political left, the claim to affirmative rights has political appeal but lacks for realpolitik. In theory, at least, government can comply with negative rights guarantees that require only restraint and inaction. Affirmative rights, on the other hand, require government action and, more importantly, resources. Politicians have long promised more than taxpayers are willing or able to pay for. Asserting those promises as constitutional rights will not make the necessary resources magically appear.
Verilli probably did not mean to suggest that the Supreme Court declare a constitutional right to health care in the Obamacare case—that would be truly unprecedented. But there is no escaping the fact that he did seek to persuade the Court that it should affirm yet another expansion of government power in service to the asserted liberties of 40 million Americans. In his argument, Verilli has turned the relationship between federalism and liberty on its head. Liberty is rarely the fruit of expanded government power, particularly where it involves the redistribution of wealth. Rather, liberty survives only through constant vigilance in the restraint of power, whether vested in the federal or state governments.
