Obama v. the Court

There was unprecedented activity this week related to the Affordable Care Act — better known as Obamacare — but it didn’t come from the U.S. Supreme Court.

Instead, it involved President Barack Obama, who took to the podium Monday to tell the Supreme Court it would be wrong to overturn his signature health care law.

As James Simon, a professor at New York Law School told The Wall Street Journal, “I can’t think of a president anticipating a court decision as Mr. Obama has done, and basically arguing in favor.”

Such presidential lobbying of the nation’s highest court is unprecedented because it is flagrantly inappropriate. The justices of the highest court in the land — our nine “philosopher kings” — are supposed to make their decisions based on their understanding of the Constitution and historic precedent, not based on public polls, party politics or a president’s thinly veiled threat to publicly attack any of the nine justices who dares to reject his health care legislation.

As a former professor of constitutional law, Obama knows this. No doubt he also knows that one of his statements Monday was blatantly false.

The president said he was “confident” the high 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.”

But there would be nothing “unprecedented” or “extraordinary” in the Supreme Court overturning a law passed by Congress that the court deemed unconstitutional. The court has been doing that since Marbury v. Madison in 1803 set the template for court review of congressional action.

In fact, the entire issue of severability — which was argued last week regarding Obamacare — developed because the high court has regularly struck down laws passed by Congress. Severability provides a means to ensure that if part of a law is found unconstitutional, the entire law won’t be rejected.

If Obama’s Monday statement were correct, it would mean passage of a law by Congress would be the last word, and there would be no authority for the Supreme Court to review any law. But, of course, that is not the case.

Indeed, the very purpose of the judicial branch of government is to act as a check on the other two. And often, that means invalidating congressional action.

Moreover, other presidents — from Thomas Jefferson to Franklin Roosevelt to George W. Bush — have been angered by Supreme Court decisions that upset their policy plans. But they made their dissatisfaction known after the fact. They didn’t try to publicly influence a case still under consideration.

The Supreme Court justices are acutely aware that the fate of Obamacare is an intensely political issue. And, based on the questions they asked during oral arguments last week, there appear to be clear differences among the nine justices about how the Commerce Clause and other constitutional provisions should be applied in this case.

But, we trust the justices will make their decision for or against the law based on those constitutional arguments, and they will ignore public posturing — whether by the media, party operatives or even the president of the United States.


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