In cases stemming from the war on terrorism, the court consistently ruled against the Bush administration, though the justices had to get around more permissive World War II-era precedents. The justices were not willing to let the government claim unlimited powers of arrest and detention, even in the name of such a good cause as national security.
In the health-care case, the roles are reversed: Conservatives warn against growth of federal power, and liberals are defending it. Still, it’s remarkable how much the two sides’ arguments mirror each other. In the war-on-terror cases, Bush’s liberal opponents were the ones positing slippery slopes, which conservatives dismissed as far-fetched.
The Bush administration lawyers argued that the Supreme Court could trust the executive branch not to abuse its war powers because the voters could elect a different president if it did. Last week, Verrilli argued that the Medicaid provisions of the 2010 health-reform law will not coerce the states, because “political constraints do operate to protect federalism in this area.”
Just as the Bush administration insisted that the war on terror was a new and unique kind of war, the Obama administration assures the court that the health-care market is unlike any other.
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