Orin Kerr on the Role of the SCOTUS
Comparing the role of the Supreme Court in the health care debate and the national security debate, Orin Kerr writes at Volokh Conspiracy:
If the Court does end up striking down the mandate, 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.
Published by The Lawfare Institute
in Cooperation With
Comparing the role of the Supreme Court in the health care debate and the national security debate, Orin Kerr writes at Volokh Conspiracy:
If the Court does end up striking down the mandate, 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. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.
Kenneth Anderson is a professor at Washington College of Law, American University; a visiting fellow of the Hoover Institution; and a non-resident senior fellow of the Brookings Institution. He writes on international law, the laws of war, weapons and technology, and national security; his most recent book, with Benjamin Wittes, is "Speaking the Law: The Obama Administration's Addresses on National Security Law."
