Steven Hayward, at Power Line, wonders whether the Supreme Court could take a mulligan on the Patient Protection and Affordable Care Act case before them. The background for his question is this:
What people forget is that Citizens United was reargued, because the Justice Department also could not give a coherent answer to a killer question, this time from Justice Alito, as to whether the campaign finance laws that prohibited the distribution of Hillary, the Movie wouldn’t also allow the Federal Election Commission to regulate the distribution of books near election day. Then-solicitor general Donald Stewart answered Yes, notwithstanding that pesky little First Amendment thingie.
Alarmed, the Court ordered the case reargued, specifically expanding its scope to ask whether certain previous cases that provided the basis for Stewart’s answer had been erroneously decided and should be overruled. During the second oral argument, a new solicitor general—Elena Kagan—was asked the same killer question, and answered: “No [we can’t regulate books]; the government’s position has changed.”
Stop and dwell on that one phrase for a moment: “The government’s position has changed.” That says about all you need to know about the rule of law in the liberal wonderland of today’s administrative state.
The question in the Court’s present PPACA case that raised Hayward’s concern was Justice Kennedy’s “Can you create commerce in order to regulate it?”
The question I have, though, concerns the Court’s position on the rule of law vs rule by law. Why did the Court need to wait on the Executive’s instruction to it of the distinction between one form of free speech and another form of the same speech? Surely it knows that there is no distinction, and it can rule on its own initiative. Surely, it could have recognized on its own judgment that a proper ruling in Citizens (i.e., that speech really is a matter of freedom) would require acceptance that it had decided erroneously on earlier cases, and that those opinions would have to be overruled. How many times was Brown argued on the recognition that Plessy would have to be overruled?
Surely the Court knows that when commerce does not exist, there is nothing to regulate, and by extension, government cannot create commerce out of the æther in order to have something to do.
That this Court needs these answers makes me wonder about its own attitude toward rule of law. It got Citizens right, but it shouldn’t have needed additional (and in the event both erroneous and irrelevant) instruction from the Executive in order to do so. It shouldn’t need additional instruction here, either.