A Washington Post writer thinks so, and suggests that this explains the need for clear limiting principles:
. . . from the Supreme Court’s perspective, they pose practically the same
question: How much more authority over individuals can the federal
government assume, consistent with the Founders’ notion of limited and
enumerated powers?
During the 20th century, the court stretched
that concept to accommodate the rise of both a large domestic regulatory
and welfare apparatus and of a permanent military and intelligence
establishment. That seemed necessary and proper in view of the social
problems of a modern urban society and the external threats of Nazism
and communism.
In fact, the welfare state and the national
security state grew up together. The New Deal’s twin was World War II;
the Great Society accompanied the Cold War. The federal government’s
expansion has protected us from old age, poverty and external threats —
while burdening us with taxes, bureaucracy and a certain amount of
official snooping.
The Bush administration took Sept. 11, 2001, as
an opportunity to win additional national security powers for the
federal government. The Obama administration saw the Great Recession as
an opportunity for a New Deal-like expansion of health care and other
domestic programs.
Consequently, the court has had to decide
whether to allow further growth of the national security state and the
welfare state — or to push back, lest these twin leviathans smother
individual freedom.
I like the point he is making here, and it fits my approach to looking at the gradual expanse of executive power over American history. As the size of the government increases - meaning the actual physical size of the institutions implementing policies increases - simple votes by the people are insufficient to limit what government's do, and the courts have to step in.
So perhaps the more aggressive approach taken by the court is a necessary response to the increased size of the executive and the real and potential expanse of its powers.
