United Liberty

With the future of ObamaCare up in the air, President Barack Obama took a divisive tone yesterday in discussing the pending Supreme Court ruling on his signature domestic, albeit blatantly unconstitutional law:

President Barack Obama took an opening shot at conservative justices on the Supreme Court on Monday, warning that a rejection of his sweeping healthcare law would be an act of “judicial activism” that Republicans say they abhor.

Obama, a Democrat, had not commented publicly on the Supreme Court’s deliberations since it heard arguments for and against the healthcare law last week.

Known as the “Affordable Care Act” or “Obamacare,” the measure to expand health insurance for millions of Americans is considered Obama’s signature domestic policy achievement.
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“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said at a news conference with the leaders of Canada and Mexico.

Conservative leaders say the law, which once fully implemented will require Americans to have health insurance or pay a penalty, was an overreach by Obama and the Congress that passed it.

The president sought to turn that argument around, calling a potential rejection by the court an overreach of its own.

“And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said.

The saber-rattling from Obama means little. Let’s face it. He doesn’t have much, if anything, with which to threaten the members of the Supreme Court. Obama isn’t FDR. He can run against the Supreme Court in the fall if he wants to, which is what some Democrats are suggesting he do, but that isn’t going to go that far given that ObamaCare hasn’t been that popular with Americans.

Liberals are, no doubt, in shock over how oral argument went last week. They expected ObamaCare to be approved by the Supreme Court without much opposition. Legal analysts expected much the same. Opponents to ObamaCare knew they had at least a fighting chance, and they’ve proved to be right.

But politicizing the Supreme Court, which is what Obama and others are doing, shows not only the arrogance of this administration, but also could undermine our legal system — which is in place to serve as a check-and-balance on the legislative and executive branches, as the Wall Street Journal explains:

After last week’s Supreme Court argument on ObamaCare, the political left seems to be suffering a nervous breakdown. Only a week ago, the liberal consensus was that the federal mandate to buy insurance couldn’t possibly be overturned. Now as panic sets in, the left has taken to mau-mauing the Justices by saying that if they overturn the mandate they’ll be acting like political partisans. The High Court’s very “legitimacy” will be in question, as one editorial put it—a view repeated across the liberal commentariat.

This criticism is itself political lobbying, as is clear from the fact that it mostly spares Anthony Kennedy, the likeliest swing vote. Liberals still hope Justice Kennedy will uphold all of the law, even as they audition the mauling he’ll get if he joins Antonin Scalia, Samuel Alito and Clarence Thomas in the ninth level of judicial hell. Chief Justice John Roberts is also being lectured that the case will “define” his career, though in six years he has already established a record as a careful consensus builder on the Court.

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you’ll show you hate sick people—as if the Court’s job is to determine health-care policy.
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The ObamaCare case is very different [from past controversial cases], as the oral arguments made clear. The Court is debating the reach of the Commerce Clause and of its own precedents in considering the limited and enumerated federal powers that are explicit in Article I, Section 8.

The Court has often overturned laws that exceeded those powers, including laws that it said exceeded the authority of the Commerce Clause (Lopez in 1995, for example, and Morrison in 2000). Hundreds of other precedents have extolled the value of the constitution’s “dual sovereignty” system—the division of state and federal power. As recently as the U.S. v. Bond case last year, Justice Kennedy wrote that “federalism protects the liberty of the individual from arbitrary power.”

Far from seeking an activist ruling, the ObamaCare plaintiffs aren’t asking the Court to overturn even a single Commerce Clause precedent.

In that sense the Court can overturn the mandate and still be far more modest than it was in the gay rights case of Lawrence v. Texas (2003) that overturned Bowers v. Hardwick (1986). And more modest than it was in barring the juvenile death penalty in Roper v. Simmons (2005), which overturned Stanford v. Kentucky (1989). The legal left celebrated both of those reversals of relatively recent Supreme Court precedents.

At stake in ObamaCare is whether the High Court will ignore 225 years of constitutional understanding to ratify the federal government’s claim that it can force individual Americans to buy an insurance product—to engage in commerce—so it can then regulate all of the health-care market. The activism charge is a political canard intended to obscure these grave issues and intimidate the Court, and the Justices and the public would do well not to take it seriously.

While I’m still not convinced that the Supreme Court is going to actually uphold the Constitution in this case, the fact that the Left is absolutely apoplectic about the oral arguments should give us reason to be cautiously optimistic.