Bush SCOTUS Finalist: Striking Down Health Reform ‘Is a Prescription For Economic Chaos’

Judge J. Harvie Wilkinson

Last month, federal court of appeals Judge J. Harvie Wilkinson, an influential conservative who has one of President George W. Bush’s five finalists for the Supreme Court nomination that eventually went to Chief Justice Roberts, published a book calling the lawsuit against the Affordable Care Act a “heavy judicial lift.” In a rare op-ed by a sitting federal judge, Wilkinson went even further yesterday, warning that the attempts to strike down the ACA could have disastrous consequences:

In curbing federal excess, courts risk lessening our national economic strength. That strength resides partly in the national aspects of our founding document, among them the now maligned commerce clause and the newly mistrusted supremacy clause, which gives preference to federal over state law when there is a conflict. States’ rights are important in many spheres, but the benefits of a national economic policy must also be considered. A vibrant economic order requires some political predictability, and the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.

It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.

Wilkinson is right to invoke the framers in defending the Affordable Care Act, because they embraced his very views at the Constitutional Convention that created our founding document. Before the framers drafted the Constitution itself, they adopted several resolutions intended to guide this drafting process. One of those resolutions, Resolution VI, established that the federal government must have authority over all problems that are national in character. In the framers’ words, the United States must be able to “legislate in all cases for the general interests of the Union and also in those to which the States are separately incompetent.”

More than two centuries later, Wilkinson’s fellow conservative Judge Laurence Silberman would echo the framers’ views in his own opinion upholding the Affordable Care Act: “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive— their individual origins.”