April 3, 2012
By Jacob Combs
The Atlantic‘s Andrew Cohen has an intriguing and somewhat snarky look at the legal acrobatics Paul Clement will have to undergo before tomorrow to take himself from last week’s arguments against the Affordable Care Act to his support for the Defense of Marriage Act in the First Circuit Court of Appeals. Let’s play a game of guess-the-case: a lawyer stands before the court and frames his argument in terms of fundamental liberties, warning against the grave consequences of an unbridled federal government intruding into its citizens’ private lives in an unprecedented way. Sounds like a good argument to make at tomorrow’s First Circuit hearing arguing against the constitutionality of DOMA, right? Not so fast–that was the very argument Clement eloquently presented to the Supreme Court last week, and it just happens to be diametrically opposed to the points that he will raise tomorrow. Here’s Cohen’s take:
Congress has no constitutional authority to punish people who don’t want to have health insurance, Paul Clement argued last week before the United States Supreme Court. This week? The heralded attorney is arguing, to another panel of federal judges, that Congress has plenty of constitutional authority to punish people who don’t want to marry someone of the opposite sex. Last week, Clement defended states’ rights and labeled as “unprecedented” the federal health care policy. This week, he says that Congress can dictate terms of a federal marriage policy over the objections of states which have legalized same-sex marriage.
If you were explaining the past week’s arguments to an alien — and by alien, I mean someone from Outer Space — it would be hard to get around the contradictions here. In America today, a federal law designed to reshape the health care market breaches some “fundamental” right to be free from federal oppression. But a federal law that punishes people who want to marry their same-sex partner is worthy of obeisance from the judges. An economic law that does not discriminate is supposed to be given less judicial deference than a moral one which does. I know the standards and precedents are different. But on every level, this is crazy.
Clement’s week-long legal about-face is an excellent example of fitting the Constitution into the specifics of a case as opposed to considering how a case should fit into the Constitution. Of course, making political use of our highest governing document is a bipartisan issue, a pastime of Democrats and Republicans alike. Nonetheless, Cohen’s central point is a persuasive one. If Paul Clement and other conservative legal luminaries are so worried about the government’s allegedly ever-increasing encroachment into the lives of its citizens, shouldn’t they oppose a law by which the federal government made an ill-thought and discriminatory foray into a field of law that has been the exclusive authority of the states since before the founding of our nation? Perhaps Paul Clement will reconcile these two seemingly opposing arguments at tomorrow’s First Circuit hearing. But don’t count on that.