So last week's Supreme Court arguments over Obamacare weren't exactly a smashing success for the Obama administration. How bad was it? Bad enough that Jeffrey Toobin called the event "a train wreck," Mother Jones called it a "disaster," and constitutional law professor Ann Althouse, amid terrible reviews of Solicitor General Donald Verrilli's performance, wondered if Verrilli had taken a dive, deliberately throwing the argument so that the Obama administration would no longer be tied to the increasingly unpopular health care bill.
But I think that people are being too hard on Verrilli. He may have coughed and stammered a bit, but his real problem wasn't about performance. His real problem was that he was tasked with defending the indefensible.
The Constitution of the United States was supposed to create a federal government limited to the comparatively few powers specifically enumerated therein, mostly in Article I, Section 8. The idea was that the federal government would address subjects that really needed to be handled on a national level. The states would do the rest, or people would take care of matters on their own.
As James Madison wrote in the Federalist No. 45, "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
To underscore this arrangement, the Tenth Amendment provided that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This division of powers was intended to protect freedom by limiting the scope of the powerful national government. It was also intended to reduce the extent of corruption in the federal government. The powers most likely to encourage corruption were left to the states.
This worked pretty well -- it wasn't until late in the 20th century that the federal government started to catch up with state governments in the corruption department. The subjects entrusted to the federal government by the Constitution -- those largely "external" powers -- simply don't lend themselves to corruption. On the other hand, when the government lays a heavy regulatory hand on almost every business and industry, the temptation for those regulated to buy off the regulators -- or to simply buy "protection" from them -- becomes much greater. That has increasingly been the pattern in recent decades, even as, not so coincidentally, the public's trust in the national government has steadily declined. As P.J. O'Rourke famously said, when buying and selling are controlled by legislation, the first things to be bought and sold will be legislators.
There are always arguments about the precise scope of delegated powers, and such arguments have regularly come before the Supreme Court. But it is one thing to argue about the precise extent of limits to enumerated power, and it is another thing entirely to deny their existence.
The last time that happened in front of the Supreme Court was in the 1995 case of United States v. Lopez, where Bill Clinton's Solicitor General Drew S. Days III was caught short by questions from the bench in much the same fashion that Obama's Verrilli was caught last week. In Lopez, the government wanted to argue that possession of a firearm near a school could be regulated as interstate commerce, because guns in school might lead to violence, which would lead to worse education, which would lead to dumber graduates, which would lead to a less productive national economy, which would mean less interstate commerce.
If that argument were accepted, the justices asked, what possible limit could there be to federal power under the Commerce Clause? Days couldn't come up with one, and the government lost the case. It was not acceptable, the majority opinion said, to "pile inference upon inference" in order to extend federal power so far beyond its intended limits. "To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."
But Days' argument was straightforward compared with the government's argument in the Obamacare case, where the government's willingness to go so far has placed the court in an uncomfortable position: Since Roosevelt's court-packing scheme of 1937 and the "switch in time that saved nine," the court has been willing to let Congress do almost anything it wants under the commerce power. But to uphold the Obamacare statute, the court would have to remove the word "almost." The trouble is, since we know that Congress isn't supposed to have unlimited powers under the Constitution, any argument that would, if accepted, grant Congress unlimited powers must therefore be wrong.
Will the court be willing to remove the "almost" and let Congress do anything it wants under the commerce power? I don't know, but if it doesn't go along with Obamacare, don't blame Donald Verrilli. Instead, blame -- or, rather, credit -- the Constitution.
Examiner Contributor Glenn Harlan Reynolds is a University of Tennessee School of Law professor, and founder and editor of Instapundit.com.