The presidents weak case
The U.S. Supreme Court heard oral arguments last week in the lawsuit by 26 states, including this one, against the Patient Protection and Affordable Care Act. President Barack Obama added some unpersuasive arguments of his own in defense of the law on Monday.
The president cited what he sees as the inherent contradiction of conservatives who usually decry “judicial activism” seeking exactly that in their quest to kill the signature initiative of his first White House term.
Yet the president concluded: “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.”
Perhaps President Obama has forgotten that his 2,700-page-plus health care behemoth got the filibuster-proof 60 Senate votes it needed without a single Republican’s support — and only after special exemptions were added for Louisiana and Nebraska to obtain the critical backing of one Democratic senator each from those two states.
Perhaps the president also forgot that the bill passed the House by a mere 219-212 margin, with every Republican and 34 Democrats voting against it. And perhaps he forgot that widespread public disdain for the law helped Republicans win back the House in 2010 and make major gains in the Senate.
But even if Obamacare had earned widespread approval in and out of Congress, as a former constitutional law professor the president should know that the high court is obligated to base its decisions on enduring legal fundamentals, not the vagaries of public opinion.
Yes, only a powerful case should move the Supreme Court to overturn any law passed by Congress. But many experts think this is just such a case due to this law’s “individual mandate” requiring all Americans to buy health insurance. To borrow the adjective pairing the president used Monday, this federal edict stretches the Commerce Clause to “unprecedented, extraordinary” lengths.
Certainly President Obama went to extraordinary — and unseemly — lengths while scolding high court members in person during his 2010 State of the Union speech. He condemned their 5-4 ruling in the Citizens United campaign-spending case six days earlier as opening “the floodgates for special interests.” Some of the justices in the House chamber that night were clearly aghast at the public upbraiding from the president.
Back to this week: Many Americans, including numerous Republican lawmakers, have justifiably objected to the president’s pre-emptive shot at the court.
Mr. Obama, reacting to the uproar, explained Tuesday: “The point I was making is that the Supreme Court is the final say on our Constitution and our laws and all of us have to respect it. But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.”
Regardless of how the high court rules on the health care law, however, and regardless of the ballot-box fallout from that decision, many Americans rightly find Obamacare’s fiscal consequences even more alarming than its constitutional problems.
Though the bill was pitched as costing $940 billion over the next decade, the Congressional Budget Office recently revised its projection to $1.76 trillion. The Unaffordable Care Act would be a more fitting name for the law.
And demonstrating greater respect for the Supreme Court would be more fitting conduct for the president.