With Eric Singer, Richard Epstein, George Will, Seth Lipsky, and 13 state attorneys general all gearing up for a constitutional challenge to ObamaCare, a victory by Scott Brown in today's U.S. Senate special election in Massachusetts could point the way to an alternative strategy for opponents of the president's health-care overhaul. Instead of relying on a court challenge to strike down ObamaCare as unconstitutional, opponents could try to elect enough senators or congressmen to block or repeal a health care "reform" bill.
On the surface, the two approaches seem to achieve the same result; with either a courtroom victory or a political one, ObamaCare would not happen. (Though usually the legislators are careful enough to include a so-called severability provision assuring that if one or another provision of a complex law is struck down by a court, the rest of the law remains in effect.)
While the ends may be the same, though, the means are different, and the advantages and disadvantages of each approach are worth thinking through. I won't presume to speak for the constitutionalist camp, but my sense from reading them is that they believe the country would benefit from a forceful judicial reminder of the limits of the commerce clause, the meaning of the takings clause, and, generally, the idea that the Constitution gives the federal government certain enumerated powers.
I'm sympathetic to that argument, but my concern is that if the Supreme Court struck down ObamaCare, it might leave proponents of ObamaCare feeling a bit like anti-abortion advocates after Roe v. Wade: feeling as if an issue had been plucked out of the political process where it belonged and decided instead by a highly educated, unelected elite. In addition, leaving it up to the Supreme Court to strike down unconstitutional laws has a tendency to absolve from responsibility the members of Congress, who, after all, swear their own oath to support and defend the Constitution. It'd probably be a healthy thing if questions about what the Constitution means became a part of the political process rather than being left to judges and law professors. What's more, if the health care question is kept in the representative democracy realm rather than being kicked out to the judiciary, it allows other arguments, like quality, cost, and the size of government, to come to bear. In the courts, the arguments are limited to the legal ones.
Anyway, this is not an argument against the courts and the Constitution being used to protect the rights of an unpopular minority, as it was, for example, in Brown v. Board of Education (there's an argument to be made that desegregation would have been faster and smoother and better if its supporters had fought more of a legislative battle and less of a judicial one, but it's an argument that I don't buy). But in the case of health care, polls show that a majority oppose ObamaCare, a point that will be underscored if Scott Brown wins in Massachusetts. In that situation, it's not clear that a resort to the courts is either necessary or desirable.