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?
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