Ever since President Obama signed the Affordable Care Act into law, Republicans have lined up in lockstep behind the lawsuits claiming the ACA is unconstitutional — even though those lawsuits have no basis whatsoever in the Constitution or precedent. Senate Judiciary Ranking Member Chuck Grassley (R-IA) even signed onto an amicus brief claiming that the law is unconstitutional. Yet, in a floor statement opposing Goodwin Liu yesterday, Grassley unleashed a blistering attack on the idea that courts should be second-guessing democratically elected lawmakers in the way the ACA’s opponents are now begging the judiciary to second-guess Congress:
Another problem I have with [Goodwin Liu’s] statement is the portion that quote “the court of appeals is where law is made.” We have heard this view before. While serving as a circuit judge, Justice Sotomayor stated that the court of appeals quote “is where policy is made.” Now I understand that there are elements of our society who wish this were the case. Those who can’t get their policy views enacted through the legislative process, as our Constitution requires, often turn to the courts — but I flatly reject that notion. The Constitution vests legislative power in the Congress, not the courts. Judges are simply not policymakers.
There is something delightfully retro about Grassley’s statement. As he reminds us, conservatives thought as recently as 2009 that an effective messaging strategy was to feign umbridge at the very idea that judges might play a role in shaping the law.
Of course, this messaging strategy was either naive or willfully ignorant. Conservative Justice Antonin Scalia has said that judges “often ‘make law.’” And there is simply no question that when the Supreme Court wipes out sixty years of campaign finance regulation or effectively eliminates consumer class actions or strips many women and older workers of their ability to receive equal pay for equal work that they have changed the face of American law.
The biggest problem with Grassley’s anachronistic use of this two year-old talking point, however, is that it unambiguously and unequivocally disavows the GOP’s single highest constitutional priority — getting the courts to overrule the democratically enacted Affordable Care Act by any means necessary. The GOP desperately wants to repeal this law but it cannot, in Grassley’s words “get th[is] policy view enacted through the legislative process, as our Constitution requires,” so they have turned to a legal theory which cannot be squared with nearly two centuries of precedent.
In 1824, the Supreme Court held that Congress’ authority to regulate interstate commercial transactions is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution,” which is just a Nineteenth Century way of saying that Congress can regulate national markets such as the health care market however it wants so long as it don’t violate any other part of the Constitution, such as the right to free speech or racial equality or the right to bear arms. Yet in their very first appellate argument challenging the ACA, the law’s opponents could not point to a single word of the Constitution which suggests that the law is invalid. Nevertheless, they still insist that the courts must strike the law down.
This is judicial activism in its purest form. Democratically elected officials spoke. The losers of that debate don’t like what they said, so they want the courts to scrap 200 years of precedent in favor of a legal theory that no one had even articulated until 2009.
It’s likely that Grassley simply did not understand the implications of his words when he repeated the same talking points that dominated the GOP’s constitutional arguments until the ACA became law. Nevertheless, it is impossible to square those words with his constitutionally indefensible stance on the ACA. If Grassley truly does “flatly reject” the idea that judges may second-guess elected officials, than he should prove it by expressly disavowing the ACA litigation.