Orin S. Kerr
Professor of Law, George Washington Law School
Five years ago, I participated in an online debate much like this one with several of the participants in our exchange today. The discussion focused on a pending case, the then-recent decision of the Fourth Circuit in al-Marri v. Wright. Al Marri had held that a suspected al Qaeda terrorist who was seized in the United States could not be held in military detention. Erwin Chemerinsky weighed in, as did Richard Epstein and myself.
Five years later, the band is back together. Or at least some of us are. A different President is in power, and the political stakes have changed. It's a different website. And this time around we're discussing the scope of Congressional power, not the detention power. Judicial power has switched from a liberal position to a conservative one, and judicial restraint from a conservative position to a liberal one. But the debate seems to be similar, even though many analysts have changed sides.
I drew the comparison earlier, but I think it's worth revisiting. In both the health care and the detention debates, the general disagreement boils down to judicial deference versus adherence to constitutional norms seen as embedded in the text. In the detention cases the text was the Habeas Clause, and the norm was that the Great Writ must guarantee judicial review of detention. In the case of the health care litigation, the text is the Commerce Clause, and the norm is that the federal government must be a government of limited powers. In both cases, the opposing side acknowledges the basic principle but concludes that it does not require invalidating the law or practice at issue, especially in light of the need to defer to the elected branches. It's not exactly the same question, of course. But I think there are some very interesting similarities.
However the Court rules, I suppose we can all look forward to 2017, when we'll be back to debate the next round in the separation of powers battle among the three branches.