Thomas Jefferson was supposed to have two portraits in his library. One was of John Locke, his favorite philosopher. Locke was one of the first thinkers to espouse the notion that power should be divided and he insisted that the legislature be separated from the executive in any viable political government. He did not separate the judicial from the legislative because he thought, correctly as it happens, that a judge in effect legislates when he or she adjudicates. Interpretation of law constitutes law-making, in effect.

In helping to think through the basis for the American Constitution, Jefferson and his colleagues decided to go with Montesquieu’s determination to separate the judicial from the legislative, insisting that these are two separate functions and should be kept apart. He was wrong. So were the framers of our Constitution. They should have listened to Locke!

The recent decision on the Affordable Care Act would appear to be a decision that favors the sitting President and his attempts at health care reform. But if legal theorists are correct, Obama wins the battle, but the conservatives win the war. The government argued for the mandate that requires all Americans to have health insurance on the basis of the so-called “commerce clause.” The Court rejected this argument, but allowed the mandate on the grounds that it is a form of tax. This was Chief Justice John Roberts’ determination, and it seemed a clear victory for “Obamacare.” However, by rejecting the government’s case basing the mandate on the commerce clause and insisting instead that it is a type of tax Roberts, in particular, accomplished two things at once: he helped give Mitt Romney a full house in the poker game which is the race for the Presidency: Romney can claim — as he has already started to do — that Obama has raised taxes on the Americans and the Republicans can play this hand right through to the big pot they so badly want, the White House. We shall see, But, in the long term, by reasoning against the commerce clause, the Court has in effect limited the ability of the Congress to legislate on major social issues. As a recent op-ed piece by Tom Scocca  in the St. Paul Pioneer Press for June 29th puts it,

This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Thursday, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

In addition, in an op-ed piece by Neal Katyal in the New York Times (June 29th) we read that. . . there is a danger here too: that courts are given the power to rewrite legislation altogether, and leave legislation in place (like health care) in a form that Congress might never have approved and that would be difficult to ever repeal.. . .Americans are growing increasingly comfortable, if not always happy, with the idea of nine men and women in Washington handing down rulings that remove decisions from the legislative process or even rewrite legislation altogether.

We should be delighted that Obama won this battle, because countless thousands of American citizens will have medical insurance who were unable to get it previously. That is a good thing. But if these editorials are correct — and there are a number of other legal theorists who echo this point of view — then we may pay a price in the long run. The Congress may ultimately have been rendered even more impotent than it already is by this decision. Locke was right: the courts are an arm of the legislature. In fact, they may prove to be the most powerful arm of the legislature.