Harry Truman ran against the “Do Nothing” Congress in the 1948
presidential election. Will Barack Obama run against the Supreme
Court this year? Answer: he will if the nation’s highest court
repudiates his signature health care reform law as
unconstitutional.
The president nearly gave away the game during his
press conference yesterday. After a long soliloquy about the
“human element” the justices would be letting down if they ruled
against his administration, Obama slipped and almost said he
expected the law to be overturned rather than upheld. (He corrected
himself mid-sentence.)
“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 averred. Perhaps he meant “democratic”
with a capital d. Only Democrats voted for the law and it passed
the House by just seven votes despite a three-fifths Democratic
majority in that chamber.
According to one
careful estimate, the Supreme Court has struck down 53 federal
statutes between 1981 and 2005. So in post-Marbury v.
Madison America, it wouldn’t be exactly “unprecedented.”
Didn’t Linda Greenhouse teach
us that “unprecedented” was a word used by people whose legal
arguments are without merit?
Obama chided conservative commentators who complained about
“judicial activism or a lack of judicial restraint” when “an
unelected group of people would somehow overturn a duly constituted
and passed law.” He concluded: “Well, this is a pretty good
example.”
Supporters of the president have been laying the groundwork for
this reaction ever since it became clear that the Supreme Court
wasn’t simply going to rubber stamp the adminstration’s request for
untrammeled federal power. Greenhouse insisted the constitutional
challenge was baseless but sighed “the justices will do what they
will do.” Paul Krugman asserted
“while most legal experts seem to think that the case for striking
the law down is very weak, these days everything is political.”
This has nothing to do with the law, they chant. It is simply
the “wingnuts” on the Supreme Court deciding to impose the Tea
Party’s vision of the Constitution on America. (Yet if the law is
upheld, the same people will celebrate the Court as a great and
powerful body whose wise rulings should go unquestioned, with the
“wingnut” who cast the deciding vote venerated as the preeminent
jurist of modern times.)
What is at stake here isn’t the Tea Party’s Constitution. It is
the Constitution written by the Founding Fathers and ratified by
the American people. It is the idea that the federal government
derives its power from the consent of the governed, consent given
not merely every two to six years at the ballot box but when a
large majority of the states and the people expressly delegate
power to the central government.
Nowhere in the confident declarations of the health care law’s
constitutionality do we see any evidence that the people who wrote
or ratified the Constitution intended to give the federal
government these powers. More than half the states in the country
have joined in the constitutional challenge and plainly don’t want
to delegate this police power to Washington.
What we see instead is the insistence that liberal policy
preferences simply must be constitutional. “I’m confident that this
will be upheld because it should be upheld,” said Obama.
For all the talk of ideologically rigid conservative justices,
it was always the four members of the Supreme Court’s liberal bloc
who were viewed as locks to uphold Obamacare. The persuadable
justices were John Roberts, the chief justice nominated by George
W. Bush, and Anthony Kennedy, who was nominated by Ronald Reagan.
They tried in vain to get the solicitor general to establish some
limiting principle for the power he ascribed to the federal
government, to tie the mandate to something enumerated in the
Constitution.
“The plaintiffs had no coherent constitutional theory on
severability and on Medicaid,”
writes American Enterprise Institute legal scholar Michael
Greve. “For that reason they will lose on both issues, and all the
partisanship on the Court, real and imagined, won’t help them.”
Greve continued by noting “the justices gave the government every
chance in the world to draw a constitutionally grounded enumerated
powers line. It couldn’t, and so it will lose.”
Just as he did when he lectured the justices about Citizens
United, Obama plans to demagogue any Supreme Court ruling that
is unfavorable to his health care program. The same president who
holds Roe v. Wade inviolate, a decision that invalidated
the laws of all 50 states on an issue no one had previously
imagined to be under federal jurisdiction, will inveigh against
judicial activism.
But Obama’s cheering section also gives away the game when they
lament that the Supreme Court has for the past 75 years allowed
Congress, with the president’s permission, to act as a national
problem-solving machine without the Constitution getting in the
way. What changed in the last 75 years? The Constitution or the
composition of the courts? Raw political power, indeed.
In fact, it was 75 years ago that FDR unveiled his “court
packing” scheme to scare justices away from enforcing the
enumerated powers doctrine when it interfered with his legislative
agenda. It worked then. Will Obama’s version work now?
