Which Way?

English: Abraham Lincoln, the sixteenth Presid...

Charles Lane’s column in today’s Washington Post raises a very interesting question about the Supreme Court’s pending ruling on “Obamacare”. Is the court ready to change direction and move to a more restrictive understanding of the Constitution?

During the Civil War, Chief Justice Taney issued a writ of Habeas Corpus for the release of a southern supporter. Abraham Lincoln ignored the order and asked, “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?”

Before the New Deal, the Supreme Court took a narrow view of the Commerce Clause. Since the 30’s the scope has been constantly increasing. When Speaker Pelosi was asked what part of the Constitution gave Congress permission to enact the Affordable Care Act, she famously replied, “Are you serious? Are you serious?” After decades of a broad reading of the Commerce Clause and the taxing authority, Congress could reasonably assume its powers were unlimited.

But, as Lincoln put it, can any provision in the Constitution be allowed to expand in such a way as to void the document in its entirety? The U.S. Constitution calls for a federal government with some limits on its powers. The states have a role in our system. If either the Commerce Clause or the taxing power is unlimited, we have a case where a single provision overrides the entire document.

It is now up to the Court to decide if the provisions of the Constitution are limited by considering their impact on the document as a whole. The nation awaits the Court’s decision.

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