In U. S. vs. Windsor the Court struck down part of a 1996 law called the Defense of Marriage Act (DOMA) which was passed with overwhelming bipartisan support in Congress and signed by Bill Clinton.  In Hollingsworth vs. Perry, the Court let stand a far–reaching decision by a federal court in San Francisco which struck down a provision which had been added to the California state constitution by a ballot initiative in 2008 called Proposition 8 to preserve the traditional definition of marriage as a monogamous heterosexual union.  In these cases, not only did both California Governor Arnold Schwarzenegger and Attorney General (and now Governor) Jerry Brown in the Prop 8 case and President Barack Obama and Attorney General Eric Holder in the DOMA case fail to defend those laws in court, but they sided with the plaintiffs in arguing that the laws were unconstitutional.

This left the laws without defenders to argue the cases vigorously, and to appeal adverse lower court decisions.  In Hollingsworth, the Prop 8 case, the Court ruled that Prop 8’s proponents could not appeal anti-Prop 8 rulings by the federal district court in San Francisco and Ninth Circuit Court of Appeals.  This left in place the decision by district court Judge Vaughan Walker that Prop 8 violated the “equal protection” clause of the 14^th Amendment.  Even the left-leaning Ninth Circuit Court of Appeals had rejected that argument (which would impose gay marriage nationwide).  Yet, by dismissing the rights, or “standing,” of the Prop 8 proponents who had tried to appeal that decision, the Supreme Court left in place that most radical of decisions.  The Supreme Court’s decision is even more untenable in light of the unanimous ruling by the left-leaning California supreme court that under California law the Prop 8 proponents did have the right to appeal.

In contrast, in the DOMA case the Supreme Court was able to get past the standing technicalities and rule on the substance, even though many legal experts considered the standing issue in the DOMA case to be much more problematic than in the Prop 8 case.  Here, because the Obama administration had refused to properly defend the law the House of Representatives had entered on the appellate level.  However, that left DOMA’s defenders on appeal arguing on a lower court record where the Obama/Holder Justice Department had only made a weak and half-hearted defense of the Defense of Marriage Act.

The California state constitution requires that its public officers take an oath to “support and defend” the California constitution (which includes Prop 8), and the United States constitution requires that the President swear to “preserve, protect and defend” the Constitution, which extends to laws validly enacted under the Constitution such as DOMA.   By ignoring this abject refusal by the constitutionally responsible officeholders to fulfill their constitutional duties, the Supreme Court has condoned a frightening expansion in executive and judicial power at the expense of the power of the people and the integrity of the Constitutions of both the United States and the state of California.  A President or governor who does not like a law no longer has to go through the constitutional hassles of having it repealed by the legislature.  All she or he needs to do is decline to defend the law when it is challenged by her or his ideological allies, and let unelected and unaccountable judges repeal the law.  Some argue that an executive does not have to defend a law which she or he feels is unconstitutional.  However, the integrity of the rule of law should then require that some provision be made for the law’s proper defense.

In California there was some effort to do this by allowing Prop 8’s proponents to belatedly defend it.  However, now the Supreme Court has ruled that the citizenry have no right to defend their own laws.  This will completely gut the power of initiative and referendum, which many states have enacted precisely in order to create a democratic check on government officials.  Now all these officials need do to thwart the referendum process is make an anemic or no defense before a friendly lower court judge, and then cite Hollingsworth to deny the people the right to appeal to higher courts.

(In the Prop 8 case, even though the proponents of the law were eventually allowed to defend it, they were never officially designated by the state, a weakness which severely undermined their ability to mount a proper defense, especially against a hostile judge who kept secret his personal interest as a partnered gay man in the outcome of the case.  And, of course, the Supreme Court ruled that the proponents’ lack of official status was fatal to their right to appeal.)

In the Windsor decision, the Supreme Court further abetted executive branch gamesmanship by allowing the Obama/Holder Justice Department to appeal the decision even though the district court had decided in favor of the Obama/Holder Justice Department’s anti-DOMA position.  While the Supreme Court did allow the House of Representatives to enter and appeal the decision, this was of little use because the House was not allowed to argue the case in the district court where the principal factual decisions about a case are made.

The issue was not unnoticed.  In the oral arguments in March, several justices expressed concern over this aspect of the cases.  Justice Kennedy noted that an executive branch decision to not defend a law results in a form of back-door repeal, a “ratchet” which favors the executive branch.  Justices Sotomayor and Alioto both wondered how a law would be defended if the executive branch refuses to do it.  

Instead of enabling Messrs. Brown, Obama and Holder to shirk their constitutional duties, the Supreme Court should have dismissed both gay marriage cases all the way to and including the pro-gay marriage district court decisions.  Democratically and constitutionally enacted laws should not be overturned without the benefit of a strong and official defense. If government executives do not wish to do so, they should be required to officially designate another party to undertake the defense, something which did not occur in either of the gay marriage cases.

This executive abuse of power should be of concern to progressives as well as constitutional conservatives.  Consider a plausible counter-factual.  Suppose Mitt Romney had won the presidency in the last election but the Democrats retained control of the Senate.  The Democrat Senate would have blocked an outright repeal of the Affordable Care Act.  However, a Romney administration could have achieved the same result by conceding the Affordable Care Act’s unconstitutionality in the many cases against that law, using the courts to make an end run around the constitutional requirements for its repeal by Congress.

The failure of the Supreme Court to impose a positive obligation on state and federal executives to actively defend all laws in federal court challenges has now established a dangerous precedent.  Legal ethics require that lawyers “zealously” represent their clients, and constitutional officials should be held to the same standard in defending the peoples’ laws.  My law school federal civil procedure professor, Ruth Bader Ginsburg, taught us that a vigorous adversary process was essential to assuring the just functioning of our common law system.  Justice Stephen Breyer has argued eloquently that the Supreme Court should seek in its decision-making to promote democratic governance.  Requiring that the executive branch vigorously defend all laws, or formally delegate others to defend laws of which it disproves, assures a complete consideration of important issues, forestalls a dangerous increase in executive power, and shows the respect due to democratically enacted laws.

 We will not know with certainty until the actual decision is released, which Court observers expect will be in June.  Justice Kennedy has disappointed constitutionalists before, and is capable of cobbling together some narrow reason to let the individual mandate and the entire law survive.  However, assuming the law is ruled invalid, what next?  Historical comparisons are never exact, but those who have studied the rise of the modern federal regulatory state can feel a sense of déjà vu over the events of the last few days.

 In the mid-1930s, a series of headline-making Supreme Court decisions overturned not one but many aspects Franklin Roosevelt’s New Deal.  Some observers thought the whole Roosevelt program dead, and expected a major Republican comeback in the 1936 elections.  Instead, FDR went on the attack, blaming “economic royalists” for the continuation of the Depression and denouncing the Supreme Court for blocking Democrats’ efforts to use government to “help” Americans recover from the Depression.  One can reasonably argue that the entire Democrat campaign was a massive prevarication, but politically it worked.  FDR won re-election in a landslide, and Democrats made substantial gains in Congress.

 In the midst of this political attack, one of the Supreme Court justices who had been voting against the New Deal laws, Owen Roberts (no relation to the current Chief Justice), switched to uphold a New Deal law like one the Court had struck down only a year before.  Shortly thereafter Roosevelt launched his infamous “court-packing” scheme, so Roberts’ vote has since become known as the “switch in time that saved nine.”  However, more important than this, other justices who had been voting against the New Deal laws began to retire.  Although he had not been able to appoint a single justice in his first term, by the end of his presidency FDR had named eight of the nine justices.

 Starting from 1937, the increasingly Democrat Supreme Court reversed most of the anti-New Deal decisions, and effectively eliminated all constitutional restraints on federal economic regulation.  This culminated in the 1942 Wickard v Filburn decision which held that if an economic activity might affect interstate commerce the federal government can regulate it. 

Wickard is the foundation on which not only Obamacare, but almost every other modern federal economic regulatory scheme is based.  It is the basis for allowing the EPA to regulate the use of tiny parcels of land and to stop any economic activity which might affect a single obscure species found in only one state.  It is the basis for preventing a local farmer who only sells locally from calling his produce “organic” unless she or he complies with reams of federal paperwork.  The examples go on ad nauseam.  At the end of his presidency, FDR boasted that, although he had lost the battle over his court-packing plan, he had won the war of bringing the Supreme Court into line with his New Deal philosophy of vastly expanded federal power.

 What lessons do the events of the 1930s have for us today?  First, it is still critical that Obama be defeated.  It is almost certain that any decision against Obamacare will be 5-4.  Justice Scalia is 76 years old and Justice Kennedy is 75.  While Justice Thomas is “only” 63, he is said to be frustrated with his lonely stance of firmly standing by the Constitution’s original meaning (even Scalia can drift from respect for the Constitution’s original meaning).  All Obama has to do is to replace any one of these three in a second term, and the Supreme Court will shift to upholding the leftist agenda by consistent 5-4 votes, including reversing any decision against Obamacare by the current Court.

 As many have pointed out, a decision overturning Obamacare may ironically help produce this result if conservatives get complacent over a Supreme Court victory.  Obama will be relieved of the burden of defending the wildly unpopular law, yet will be able to energize his base by denouncing the “Republican” Supreme Court’s obstruction of his efforts to “help” the people.  (On the other hand, there might be a somewhat offsetting advantage if Romney is the Republican nominee, since he is ill-equipped to attack Obamacare.)

 Second, a Supreme Court decision against Obamacare could dilute the energy for reducing federal power back to something approaching its original constitutional bounds.  The legal arguments presented against Obamacare assume the validity of all prior Supreme Court decisions.  A decision overturning Obamacare will draw a line against the further expansion of federal power, which is a very good thing, but it will do nothing to roll back the previous expansion of federal power since the New Deal.  The EPA and all of the other alphabet soup of czars and regulatory agencies will remain undisturbed.  Again, complacency and lack of a clear target are the dangers. 

 (However, there is a somewhat offsetting advantage here also.  The publicity over the Obamacare cases has significantly raised public awareness of Wickard and its ilk, cases which even most lawyers had forgotten about if they were more than a few years out of law school.  This can only help in the larger war of educating Americans on how the federal government has expanded far beyond the limits the framers so carefully built into the Constitution.)

 Third, a victory in the Supreme Court will perpetuate the myth that the Supreme Court will protect our freedoms.  As the FDR New Deal cases like Wickard and many since show, the Supreme Court is just as capable of taking away our freedoms as it is of preserving them.  We need to get over the New Deal idea that the Supreme Court is the ultimate arbiter of the meaning of the Constitution, and has the right to change its meaning to keep it up-to-date with current social thought.  We can not rely on the Supreme Court.  Only the political victory of Americans who respect the Constitution, reinforced by constitutional amendments restating and re-affirming the Constitution’s original meaning and structure, can permanently assure the restoration of our freedoms and Republic.

 To accomplish the first we need to elect constitutionalists to Congress and state and local offices, not just the presidency.  To accomplish the second, we need to reform the amendment process to allow states to initiate and enact amendments without having to go through Congress or the unused and archaic mechanism of a convention. Such a proposal can be found here.

Another way to measure the gross impact of federal regulation is to count the pages in the official publication of all federal regulations, the Federal Register.  This is a bit crude as a measure, because a very long regulation may be fairly innocuous whereas a short one could have a massive cost imprint, but it is a decent rough gauge of the extent of the totality of federal regulation.  The Federal Register for 2010 is over 81,000 pages long, a 19% increase in one year.  We do not have a page count on the regulations to be repealed, perhaps because many of the revisions have yet to actually go into effect, but it is safe to assume that they will come nowhere near to matching the voluminous regulations still to be issued under the new Obamacare and Dodd-Frank laws.  And there are also the numerous ongoing rule-makings by Professor Obama’s hyperactive regulators at the EPA, NLRB and the rest of the seemingly endless alphabet soup of federal regulatory bodies.

However, all this begs a deeper question: why is the national government regulating small businesses in the first place?  To put this question in perspective, the Federal Register was first issued in 1936.  At that time it was 2,600 pages long (and that was after four years of the New Deal).  The Left will argue that growth in federal regulation is inevitable as our Nation grows.  So, let’s look at that.  From 1936 to 2010 the population of the United States grew by 240% (128 million to 308 million).  Over the same time period the Federal Register grew by over 3131%.  That means that the page count of federal regulations has grown at over 13 times the rate of population growth since the middle of the New Deal.  And again, as noted, Professors Sunstein and Obama still have much, much more regulation to come.

One of the reasons the first Federal Register of 1936 was so short was that up until then the Supreme Court had followed the original understanding of the Constitution’s interstate commerce clause, which limited Congress’ authority to commercial activity that actually crossed state lines.  However, the next year in 1937 the Supreme Court began to abandon the previous understanding of the interstate commerce clause.  Under the new interpretation anything that might maybe in any way have any affect on any kind of commerce any where was deemed to come under the federal Congress’ power.  This included any business no matter how small it was and no matter how local its activities were.  The classic case is Wickard v. Filburn, a 1941 case which held that an Ohio farmer could be fined for violating federal agricultural quotas for food grown for use on his own farm! 

This massive re-interpretation of the Constitution’s interstate commerce clause completely overthrew the Constitution’s original allocation of powers between the federal and state governments.  Small businesses were now subject to a double burden of federal as well as state regulation.  With Obamacare it is now even claimed that a private individual citizen can be penalized under the clause regulating interstate commerce for failing to buy something the federal government says they must buy. 

Where did the Supreme Court get the right to make such a massive change to the original meaning of the Constitution?  It certainly is not in the Constitution itself.  There it says that to change the Constitution you have to get various super-majorities of elected legislatures.  There is nothing about courts changing the Constitution.  In fact, the entire edifice of the federal regulatory state rests on an undemocratic and unconstitutional expansion of the interstate commerce clause by a body without constitutional authority to make such an expansion.

Unfortunately that expansion is now locked into 70 years of Supreme Court precedents.  Even if the current Supreme Court declines to further extend the expansion by overturning the Obamacare individual mandate, that will still leave in place the other 81,000 pages of federal regulations, and many more to come which fall just short of the individual mandate.  Republicans in Congress have several legislative proposals to alleviate the federal regulatory burden on small business, but given the morass of special interests behind all of this federal regulation, it is hard to see how Congress will ever make a meaningful dent.

In Timely Renewed: Amendments to Restore the American Constitution, I propose instead that we re-invigorate the constitutional amendment process to restore the original meaning of the interstate commerce clause, along with other much abused clauses.  The specific proposal for restoring the interstate commerce clause’s original scope is in chapter 6.  With this, small business would be regulated only by the states instead of “one-size-fits-all,” Big Business oriented federal regulations.  Only this will really achieve Professors Sunstein and Obama’s purported goal of relieving small business of the regulations which are stifling their ability to produce the new jobs we so desperately need.