More on broccoli nay-saying, and American constitutionalism

Matt Yglesias should consider subscribing to this blog to prevent making mistakes like this one, insisting that mandating broccoli consumption is no different from subsidizing it:

Legal issues aside, I really think these efforts to scare people with the specter of unlimited government founder on the fact that any government empowered to levy excise taxes is conceptually pretty much unlimited. The government is allowed to tax everyone, and use the revenue to subsidize broccoli consumption. Now maybe you think that’s legally distinct from the idea of fining people for failure to consume broccoli. But the practical impact is identical.

No, it’s not.

But, Yglesias is not completely off base when he says:

The votes aren’t there to repeal ACA and the votes aren’t there to pass ACA, so whether or not the court strikes it down is hugely important. That’s an interesting fact about American politics in 2011, but it has implications whatsoever for the conceptual boundaries of congressional power. As ever, the best guarantee that congress won’t do something you don’t like is to win elections.

What’s happening here between the Supreme Court and Congress is something like what happened with the Court’s Free Exercise jurisprudence and Congress’s Religious Freedom and Restoration Act.  Very briefly, In 1990, the Court decided Employment Division v. Smith, which upheld an Oregon law prohibiting the use of peyote over the objection that peyote use was part of a religious rite.  The Court held that generally applicable laws received only rational basis review, and thus could survive objections based on religious freedom.  Infuriated, Congress enacted RFRA in 1993, requiring the Court to strike down laws like Oregon’s unless there was a compelling government interest.

Then came City of Boerne v. Flores, a 1997 case filed under RFRA based on San Antonion’s denial of a permit request to expand a church located in a historic district.  The Court held the RFRA was unconstitutional, since section 5 of the Fourteenth Amendment only grants Congress procedural or remedial authority, not a substantive authority to define the contours of the First Amendment.  Because, the Court held, RFRA was essentially a direct challenge to the Court’s holding in Employment Division v. Smith, its constitutionality could not be supported under section 5 of the Fourteenth Amendment.

Justice O’Connor, in her dissenting opinion, disagreed with Justice Kennedy’s majority opinion that focused on whether Congress had a legitimate source of power in enacting RFRA.  Instead, she focused, like Yglesias does, on the political dialog that occurs between Congress and the Court:

If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.

. . . .

Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates. But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court’s exposition of the Constitution and with the limits placed on its legislative authority by provisions such as the Fourteenth Amendment.

What O’Connor seems to suggest in her dissent is that there should be a back-and-forth between Congress and the Court:  Congress can check the Court; the Court can check Congress, all in light of new legislation and experience.  It’s an interesting theory with must to be said for and against it.  I’ll make just one point for the present:  If the Congress, no less than the Court, is authorized to determine the limits of its own power, is it possible any longer to say there are any fixed limits to its power?  Is it possible to maintain any longer a distinction between a constitutional and a parliamentary system?  If, as Yglesias says, the only check on power is “to win elections,” is there any meaningful counter-majoritarian function left in our political system?