At an oral argument on April 28, 2004, the Bush administration asserted that the president could declare a U.S. citizen an “enemy combatant” and hold him incommunicado at a military base, with no judicial review. The administration’s legal team argued that this was the logical extension of the president’s constitutional authority as commander in chief and of the September 2001 congressional resolution authorizing him to use “all necessary and appropriate force” against al-Qaeda.
Several justices were clearly troubled.
“Suppose the executive says, ‘Mild torture, we think, will help get this information,’ ” Justice Ruth Bader Ginsburg asked. “Some systems do that to get information.”
“Well,” responded Paul Clement, then the deputy solicitor general, “our executive doesn’t.”
Later that day, CBS News broadcast graphic photos of prisoner abuse at Abu Ghraib.
As policies, Obamacare and George W. Bush’s war on terror have almost nothing in common. They do not address the same subject matter.
Yet from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?
During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.
In fact, the welfare state and the national security state grew up together. The New Deal’s twin was World War II; the Great Society accompanied the Cold War. The federal government’s expansion has protected us from old age, poverty and external threats — while burdening us with taxes, bureaucracy and a certain amount of official snooping.
The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.
Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.
In cases stemming from the war on terrorism, the court consistently ruled against the Bush administration, though the justices had to get around more permissive World War II-era precedents. The justices were not willing to let the government claim unlimited powers of arrest and detention, even in the name of such a good cause as national security.
In the health-care case, the roles are reversed: Conservatives warn against growth of federal power, and liberals are defending it. Still, it’s remarkable how much the two sides’ arguments mirror each other. In the war-on-terror cases, Bush’s liberal opponents were the ones positing slippery slopes, which conservatives dismissed as far-fetched.
The Bush administration lawyers argued that the Supreme Court could trust the executive branch not to abuse its war powers because the voters could elect a different president if it did. Last week, Verrilli argued that the Medicaid provisions of the 2010 health-reform law will not coerce the states, because “political constraints do operate to protect federalism in this area.”
Just as the Bush administration insisted that the war on terror was a new and unique kind of war, the Obama administration assures the court that the health-care market is unlike any other.
And now a conservative-led majority on the court may strike down Obama’s individual mandate, just as a liberal-led majority struck down Bush’s military tribunals. If so, law professor Orin Kerr wrote on the Volokh Conspiracy blog, “this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted.”
Justice Anthony M. Kennedy was in the majority when the court reined in Bush, and his questions at oral argument last week suggested that he has misgivings about the scope of the health-care-reform law, too.
Kennedy’s mistrust of unlimited government, it seems, knows no limits.