Easily the most disturbing trend in constitutional law is the reemergence of tentherism, a states’ rights doctrine more radical than anything America has seen since George Wallace stood in a schoolhouse door. In its most radical form, tentherism would declare everything from Social Security, to Medicare, to child labor laws, to the ban on whites-only lunch counters unconstitutional, and tenthers have so successfully infiltrated the Republican Party that the House GOP’s so-called Pledge to America promised to honor the tenthers’ strange understanding of the Constitution.
Tentherism could receive its first big test in front of the Supreme Court next year, when the justices will be asked to decide whether to overrule nearly 200 years of precedent in order to declare the Affordable Care Act unconstitutional. In the mean time, however, there is little reason to believe that even many of the Courts most conservative members are eager to rewrite the balance between the federal and state governments.
For one thing, the Roberts Court’s conservative wing shows little interest in protecting the sovereign interests of the states. In one of its most important decisions this term, the five conservatives declared that federal law sweeps away state laws protecting many consumers who take potentially dangerous generic drugs through a doctrine known as “preemption.” Moreover, four of these conservatives would have erased a longstanding doctrine saying that most state laws come to the Court with a presumption against preemption. This kind of decision would certainly please corporate interest groups eager to see state consumer protection laws preempted, but it is the opposite of a decision respecting states rights.
In and of itself, this love of preemption isn’t terribly significant. Tentherism is almost certainly motivated by a desire to handicap government generally than it is by a real philosophical bent towards states rights, but the Roberts Court also handed down what is probably the most expansive interpretation of congressional power in American history. In last year’s United States v. Comstock, the Court upheld a law — with Roberts in the majority and Kennedy and Alito writing concurring opinions — allowing the federal government to detain “sexually dangerous” individuals long after they had completed a criminal sentence. Such a law has no connection to the national economy, a factor that casts the law’s constitutionality into grave doubt, yet the Court upheld this law. It is difficult to see how the justices could strike down the ACA after deciding the way they did in Comstock.
The ACA’s opponents tout a minor opinion called Bond v. United States as evidence the justices hate the ACA after all, but their argument claims far too much. Bond contains a great deal of flowery language explaining why individuals benefit from the 10th Amendment, but it says nothing whatsoever about just what the 10th Amendment actually does. More importantly, Bond was a unanimous opinion — so the only way to read the case as conservatives suggest would be to conclude that Justices Ginsburg, Breyer, Sotomayor, and Kagan are itching to kill two centuries of law to strike down Obamacare.
In other words, while radical states’ rights conservatism has become the defining feature of constitutional debates in Congress and on the cable news shows, this trend appears to have passed the Supreme Court by for now (at least outside of Justice Thomas’ chambers, that is). This fact shouldn’t prove surprising — all of the Court’s conservatives were appointed years before tentherism became the new black at Republican cocktail parties — but it reflects a very real divide between the GOP’s very public radicalism and the minds of the nine individuals empowered to interpret the Constitution. Hopefully, they will remember that neither the law nor many of their own previously expressed views justify rewriting the Constitution if the Affordable Care Act reaches their bench next year.