Later in March, the administration claimed in the ObamaCare case that the government could require people to buy something as a means of regulating a broader national market. And a month later in Arizona v. United States, the government said that a federal policy decision regarding immigration enforcement priorities could by itself trump state law—a position that seemed to trouble even Justice Sonia Sotomayor, one of the president’s own nominees.
More recently, the Justice Department has been suing states over voter-ID laws. Attorney General Eric Holder makes speeches claiming these laws herald the return of Jim Crow. Never mind that the Supreme Court has found them to satisfy the Voting Rights Act and the Constitution, most recently by 6-3 in Crawford v. Marion County Election Board (2008), where plaintiffs claimed that needing a photo-ID placed an undue burden on their right to vote.
The government’s arguments across a wide variety of cases would essentially allow Congress and the executive branch to do whatever they wanted without meaningful constitutional restraint. This view is at odds with another unanimous Supreme Court decision, Bond v. United States (2011). Bond vindicated a criminal defendant’s right to challenge the use of federal power to prosecute her. As Justice Kennedy wrote, “[F]ederalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”