“Federalist Society Types” Were Committed to Judicial Enforcement of Federalism Long Before Obamacare

University of Colorado Law Professor Paul Campos decries what he calls “the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments” in the wake of the enactment of Obamacare. Campos’ claim of a “recent conversion” could hardly be more wrong. If there’s one thing that most “Federalist Society types” have been consistent about over the years, it’s judicial enforcement of, well, federalism. For years, many of us have repeatedly argued for stronger judicial enforcement of the limits to Congressional power under the Commerce Clause and the Tax and Spending Clause, the two provisions most commonly cited as constitutional authorizations for the Obama health care bill. That’s why we defended decisions such as United States v. Lopez and United States v. Morrison and decried cases such as Gonzales v. Raich.

For example, I’m a member of the Society and also sit on the Executive Committee of its Federalism and Separation of Powers Practice Group, the branch of the Society that most directly focuses on these issues. I’m also a constitutional law scholar who writes extensively on federalism. And I have consistently argued for strong judicially enforced limits on congressional power in both fields, including with respect to policy initiatives favored by Republican administrations, such as the War on Drugs, the federal ban on partial birth abortion, and others. Most of the other people who are members of the Practice Group leadership hold at least roughly similar views to mine on these issues. The same goes for the majority of the Federalist Society-affiliated conservative and libertarian scholars who have written on these matters for the last 15-20 years or longer.

On these questions, as on many others, there is a diversity of opinion in Fed Soc circles and among right of center legal scholars. There are a few (e.g. – Lino Graglia) who oppose nearly all judicial review, including on federalism issues. Overall, however, the need for strong judicial enforcement of federalism limits on congressional power is one of the issues that most unites conservative and libertarian legal scholars and jurists. It brings together such otherwise disparate people as social conservative lawprof John Eastman (longtime chair of the Practice Group Executive Committee), and libertarians like co-blogger Randy Barnett and myself.

Campos may be on to something in criticizing loose conservative political rhetoric against “judicial activism,” which sometimes makes it seem as if conservative Republicans are opposed to virtually any strong form of judicial review. I myself have argued that “judicial activism” is not an analytically useful concept. One of the problems with the term is that it can refer to either judicial rulings that overrule the decisions of the political branches or those that impose the judge’s policy preferences on the law. Under the latter definition, a decision upholding an unconstitutional law that the judge favors on policy grounds is just as “activist” as one that strikes down a constitutional law because the judge opposes it. In my view, most conservatives who attack “judicial activism” mean to criticize judges’ imposition of their policy preferences, not judicial overruling of statutes as such.

Be that as it may, most “Federalist Society types” have been pretty consistent in supporting judicial enforcement of federalism for a long time now. For many of us, the need to keep federal power within constitutional bounds is a big part of why we became Federalist Society types in the first place.