Tuesday, April 03, 2012

Knut Wicksell, SCOTUS and our Constitutional Law Professor

Yesterday the President commented "For years, what we've heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law..."    POTUS was evidently trying to influence SCOTUS.   It follows a line of reasoning adopted by the left in recent days about the inappropriateness of courts overturning "commerce" related laws adopted by legislative bodies.  To me a lot of this harkens back to the grumpiness that FDR expressed when the Supreme Court rejected a lot of his New Deal programs.

It is stunning how little this President seems to know about Constitutional theory, for one who claims to have taught Constitutional law at one point.    A key principle of our system is the inherent tension between the three branches of government.   Each has some role in the other.   For example, the President nominates but the Senate confirms nominees to key positions in the executive branch.   Included in that role is the confirmation of court nominees.    At the same time the court, beginning soon after the founding of the Republic has the authority to overturn laws which are outside the powers expressly granted to the Congress, in its powers to make laws.   Article 1, Section 8 has a set of enumerated powers.

Knut Wicksell was a Swedish economist who taught in the late 19th and early 20th century.  Some have called him the economist's economist.   While he wrote a lot about the role of the state (and its proper role in redistribution of income - something this president should be interested in) he also wrote about the inherent logic of collective decisions.   James Buchanan, the 1986 Nobel Laureate in Economics, rediscovered this range of Wicksell's theories while doing a post-doc at University of Chicago.   Wicksell theorized that decisions made in legislative bodies faced the dangers of cyclicality if they were not taken with care.   If you have a very close decision in a legislative body it is likely to be brought back again and again.  But if you get a larger percentage of members to support the idea - that is less likely to happen.  

Obamacare was adopted with very narrow margins. (Just 7 votes in the House)  For whatever reason, the majority democrats chose not to include any GOP members in their decision.  The democrats claimed at the time that it was "impossible" to get the GOP members to participate in a meaningful way.   No one said making tough decisions is simple.   But the danger for any legislative body that chooses to make decisions like the ones used to adopt Obamacare is that without reasonable consensus you get into all sorts of decisions 

It is utter nonsense to argue that the Supreme Court does not have a role in determining whether Obamacare fits within the powers authorized to the federal government.  

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