Talk about chutzpah. The same chief executive who refused [8] to provide a speck of guidance to one branch of government in crafting his signature legislation is now threatening another branch of government not to overturn it.
Does President Obama believe in the separation of powers? You wouldn’t know it from his intemperate comments [9] Monday on the legal challenge to the Patient Protection and Affordable Care Act, which the Supreme Court is now deliberating. Just days after skeptical justices subjected administration lawyers and their opponents to a historic six hours of questioning, and just as the judges were retreating to contemplate the competing claims in private, Obama stood up in the Rose Garden and loudly warned the nine “unelected” rubes that they’d better get this one right.
Obama declared that overturning his health care law would be “unprecedented” and “extraordinary”—which is funny, because that’s what a lot of people have been saying about his health care law.
What with his haranguing of the justices over their Citizens United decision and his veiled threats over Obamacare, we haven’t had a president interfere this much with the Supreme Court since FDR. (Apparently Obama’s intimidation tactics aren’t strong enough for Representative James Clyburn, who wants [10] the president to campaign against the Supreme Court this fall.)
Can anyone recall an instance of one faction of the Supreme Court instructing a sitting president which laws to veto? How about a Congressional caucus telling the Chief Justice which cases to turn down?
One federal appeals court is so rattled by Obama’s posturing that it is requiring [11] his Justice Department to submit a brief by Thursday noon outlining whether and when it believes the Supreme Court has the authority to overturn federal legislation.
In his address Monday, Obama blithely threw around the term “judicial activism,” suggesting that the Supreme Court justices would be guilty of practicing it if they overturned Obamacare. But judicial activism doesn’t mean “making decisions the other side doesn’t like.”
The justices’ sworn oath is to uphold the Constitution. Conservative complaints of judicial activism refer to cases in which justices override the Constitution while upholding or striking down laws that suit their political preferences.
Conservatives have focused obsessively on the constitutionality of the law since Day 1, in particular the propriety of requiring people to enter commercial contracts against their will by purchasing health insurance in the private market.
Judicial activists, including Obamacare supporters, ignore the constitutionality of laws, unless they are forced by their opponents to concoct phony, sophistic defenses invoking the Constitution, in which they typically claim that whatever it is they’re proposing—banning guns, preventing violence against women—is covered by the Interstate Commerce Clause.
When was the last time you heard a Republican legislator respond, when asked about the constitutionality of a law he had proposed, “Are you serious?” as former Speaker Nancy Pelosi did when queried about Obamacare? How about a Republican announcing, as Illinois Democrat and former Congressman Phil Hare did [12] at an Obamacare townhall meeting, “I don’t worry about the Constitution”?
(The left needs to get its story straight on whether the Supreme Court may ever consider the constitutionality of legislation. Liberal Dahlia Lithwick, for example, claims [13] that Congress can pass anything it wants, whether constitutional or not, because the Supreme Court will assess its constitutionality and strike it down if need be. This was two years ago, back when blinkered Democrats didn’t think there was any chance the Supreme Court would hear the case against Obamacare, much less overrule it. On the other hand, fellow Slate writer Jamal Greene recently argued [14] that the Supreme Court should eschew its constitutional function and let Obamacare stand, because two branches of government have already weighed in.)
In case the “unprecedented” and “judicial activist” arguments weren’t convincing, Obama also crowed that the law had been passed by “a strong majority” of Congress—by which he meant a sputtering, cobbled-together Frankenstein’s monster of reluctant coalitions that had to be bribed, deceived, and threatened into compliance. (The 2010 Republican midterm election landslide, though—that was nothing special!)
Meanwhile we’ve learned that the American public is solidly on the conservative justices’ side, with 72% endorsing [15] the notion that the individual mandate is unconstitutional. This includes over 50% of Republicans, Independents, Democrats, voters who oppose the law, and voters who support the law. How’s that for “a strong majority”?
Obama’s chance to offer input on his namesake legislation has long since passed. It’s time for him to get out of the way and accept the court’s—and the public’s—verdict on the disastrous legislation he recklessly set in motion.
