The retirement of Supreme Court Justice John Paul Stevens gives President Obama an opportunity to fill a second Supreme Court vacancy. The choice could be pivotal because the court soon will be asked to rule on the constitutionality of intrusive health legislation enacted under Congress’ power to regulate commerce, i.e., the Commerce Clause. With this president seeking a larger and larger federal establishment, health care will not be the only such case the court will decide in the coming years.
This upcoming debate fits well with the public’s concern about huge deficits, high taxes and an ever-larger federal establishment that tries to do everything but does nothing very well. A seminal reason for the existence of such an ineffective federal government is that we have ignored traditional constitutional prohibitions against the federal government usurping functions that should be left to the individual states. Debate over the Stevens vacancy is another opportunity to rediscover the constitutional virtues of federalism and limited government. Republican members should question the president’s nominee closely to ascertain what restraints, if any, he thinks the Constitution places on federal power.