Obamacare-Gitmo Parallel

"If the Court does end up striking down the mandate," wrote Orin Kerr last week at the legal blog, the Volokh Conspiracy, "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. ... 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. "

Kerr dives into the legal weeds (for non-lawyers anyway) to argue here and here that "there's a lot in the comparison, in part because the debate over both policies boils down to judicial deference versus constitutional norms seen as embedded in the text."

Kerr notes that Charles Lane picked up the same theme in a Washington Post article this week:

As policies, Obamacare and George W. Bush’s war on terror have almost nothing in common. They do not address the same subject matter.

Yet from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?

During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.

In fact, the welfare state and the national security state grew up together. The New Deal’s twin was World War II; the Great Society accompanied the Cold War. The federal government’s expansion has protected us from old age, poverty and external threats — while burdening us with taxes, bureaucracy and a certain amount of official snooping.

The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.

Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.