Saturday, May 25, 2013
It isn't unusual for President Barack Obama to blame conservatives for opposing his plans, but it is odd for him to identify their views with a putative majority of the U.S. Supreme Court (which has to include Justice Anthony Kennedy, no conservative's idea of a right-wing ideologue).
Of course, it also seemed strange to see so many commentators on the right spring strongly to the court's defense when they had been so critical of other rulings, such as creating a "right" to abortion in Roe v. Wade; or disallowing not only prayer but even a moment of silence in public schools; or voiding 49 state laws that criminalized flag-burning.
On Monday, President Obama said, "I'm 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."
Sen. Orrin Hatch, R-Utah, replied, "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.' ... After a national debate on the subject, more than two-thirds of Americans agree that the Obamacare insurance mandate is unconstitutional."
And Obama's definition of "strong majority" is suspect, as the law passed narrowly in the House, 219-212, with all Republicans and 34 Democrats opposing it. It got 60 votes in the Senate, but no Republicans backed it there, either.
Since his first missteps, the president and his defenders have been busy walking back his criticism.
On Thursday, Attorney General Eric Holder responded to a 5th Circuit Court justice's demand for an explanation of the administration's views by saying it is "beyond dispute" that courts can overturn laws on constitutional grounds, though he said laws passed by Congress are "presumptively constitutional" and deserve "principles of deference" from the courts.
He added that Obama's statement reflected both views -- something many legal authorities, including Obama's former law professor, Lawrence Tribe, disputed.
The tenor of questions from a potential majority of the justices about the Affordable Care Act's individual mandate indicated considerable skepticism toward its constitutionality. And if that fails, the entire law could be in jeopardy.
Still, it is unusual for a president to confront the Supreme Court openly before a ruling is declared. Some commentators speculated he was trying to influence the vote by making judicial opponents appear guilty of malfeasance.
If the ruling does go against him, however, he may think he can profit politically in the coming campaign by following Franklin D. Roosevelt in raising the specter of a "conservative court" opposing his initiatives.
"Vote for me so I can appoint more liberal judges" could become a key political talking point for Obama. Of course, support for more conservative judges could be a strong position for the GOP nominee, too, because Obama's position assumes that Americans value the mandate, and as Hatch pointed out, that's not true.
There is a real difference between rulings that rewrite our laws to create new "rights" out of "penumbras" (literally, "shadows") or "emendations" unearthed by judges, such as a universal "right" to abortion.
Such creations are quite different from rulings that address the constitutionality of a concrete statute.
The former rulings are rightly labeled "judicial activism," because they represent the court becoming a law-making body writing its own legislation, which is properly the role of Congress.
The court's ability to determine the constitutionality of laws and formal policies, however, began with Marbury v. Madison in 1803 -- even though other presidents, including Andrew Jackson and Abraham Lincoln, as well as FDR, were scornful of some court rulings, and many decisions have certainly offended conservatives.
Liberal activist James Carville claimed that a ruling overturning Obama's Affordable Care Act would mean "the Republican Party would own the health care system for the foreseeable future."
That's true -- but it's not a bug, it's a feature. It represents a huge opportunity for the GOP, which should offer a solid plan for reform.
Such a plan, Investor's Business Daily said this week, could include giving individuals the tax breaks for insurance that only businesses now receive; letting consumers buy plans nationwide, overturning current state prohibitions on the practice; permitting small groups to form associations to get discounts based on scale; liberating health savings accounts from their current statist constraints; and reforming tort laws to reduce the pressure huge judgments place on health care costs.
That's only a beginning, but it's a good place to start, whether Obamacare is ruled unconstitutional now -- or if it is repealed next year by a new Congress and a new president acting in the public's real interest.
M.D. Harmon, a retired journalist and military officer, is a freelance writer. He can be contacted at: firstname.lastname@example.org