Claeys on Sebelius and the Election

In an op-ed published in the National Review Online, Professor Eric Claeys suggests that constitutionalists — partisans of limited, constitutional government — should continue to make constitutional criticisms of Obamacare and broaden those charges by making the Sebelius decision part of their indictment.

"The 113th Congress won't be seen as attacking the Court — not if constitutionalists forge a mandate claiming that the Sebelius decision is forbidden fruit and that Obamacare is unconstitutional," says Claeys.

Claeys offers three pieces of advice for forging such a mandate, concluding that if those kinds of arguments are picked up, "they will help Republicans win the 2012 elections, and they will give constitutionalists a much stronger mandate to repeal Obamacare in 2013."

Sebelius and the Election, National Review Online, July 30, 2012. By Eric R. Claeys.

"How might they forge such a mandate? I have three pieces of advice. First, constitutionalists should persuade Republican leaders to make no more concessions to Sebelius as the 'final' word on the constitutionality of § 5000A. Representative McClintock is absolutely right: 'the Supreme Court is not the highest court in the land. That position is reserved to the rightful owners of the Constitution, the sovereign American people, through the votes they cast every two years.'

"Second, constitutionalists should persuade the Republican party to adopt planks regarding the Sebelius decision in its 2012 party platform. The Republican party has adopted thoughtful planks on the Constitution and the judiciary for other watershed elections, like the 1860, 1912, and 1936 elections. Four planks seem appropriate after Sebelius.

"The first of these planks should proclaim that the Republican party respects Sebelius as the federal judiciary’s current stated position on the constitutionality of § 5000A. Critics may try to tar principled opposition to Sebelius with the brush of nullification and segregation; a plank like this should inoculate Republicans against such unfair associations. Second, consistent with Chief Justice Roberts’s opinion and with the dissenters’ opinion in Sebelius, a plank should proclaim party policy to be that it is beyond Congress’s powers under the Commerce Clause and the Necessary and Proper Clause to mandate that individuals purchase health insurance against their will. Third, contrary to Chief Justice Roberts’s Court opinion, a plank should proclaim party policy to be that Sebelius’s holding on Congress’s tax powers is erroneous, deserves to be overruled, and should not be followed by Congress or the president. Last, a plank should declare that the federal judiciary’s responsibility is to determine what the law is in cases properly before it — and that a court exceeds the scope of its 'judicial power' if it misconstrues an act of Congress to avoid constitutional questions fairly raised by the act’s obvious meaning.

"My third piece of advice is that Representative McClintock and other congressmen and candidates should keep repeating the constitutionalist case against the individual mandate. The case against the mandate should not be made exclusively on constitutional grounds. Not every congressman needs to address the constitutional issues to make them resonate. But the candidates and representatives who can make the constitutional arguments as fluently as Representative McClintock should keep doing so. There will be legislative votes, debates, and campaign ads about health care. In these and other places, constitutionalists should keep hammering home the case against the individual mandate — and now too against Sebelius."