So it has come to this: Having bribed and browbeaten lawmakers into passing it, suffered a historic election loss in the wake of its passage and endured unrelenting popular opposition to it ever since, President Obama is now resorting to veiled threats against the Supreme Court as he attempts to surmount one more obstacle to the enactment of ObamaCare.
It’s fitting: Much of the initial opposition to ObamaCare was prompted by a provision requiring senior citizens to appear before government-run “death panels.” Now the law itself is at the mercy of a panel of nine justices who will decide its ultimate fate.
Last week, Obama called on the court, which he dismissively referred to as an unelected “group of people,” to show “deference to democratically-elected legislatures” by upholding the law or risk diminishing its “credibility.”
Under fire even from some liberals, Obama retreated the next day, insisting that he’d “have to respect” the court’s decision. But Obama wasn’t the only one making threats.
Connecticut Democratic Senator Richard Blumenthal said that the court would damage its reputation if it doesn’t uphold the law. “The court commands no armies, it has no money; it depends for its power on its credibility,” he said. “The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statue of this magnitude and importance.”
It was just a more candid version of the argument the administration made to the court. U.S. Solicitor General Donald Verrilli closed his case saying that Congress made a judgment in passing the law—“maybe they were right, maybe there weren’t,” he said—and that the court should respect the policy judgment made by democratically elected lawmakers.
Obama and his allies assert that the court risks its credibility by voting down ObamaCare. But to the extent that the court’s credibility has been eroded, it’s likely due to its judicial activism of the last 30 years. Where would the left be without the court’s demonstrated willingness to strike down laws it deems unconstitutional—from abortion restrictions to prayer in schools?
The court’s rulings on these issues weren’t rooted in the Constitution, nor did they have popular support. This judicial activism may help explain why public trust of the judicial branch is at a historic low.
To liberals, the right of citizens to make private reproductive healthcare decisions without government intrusion is sacrosanct; but that right apparently does not extend to the right of citizens to decide where to obtain that healthcare.
Obama also said last week that he was “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.”
There is nothing unprecedented about the Supreme Court striking down a federal statutes. That’s part of its job, a power established in Marbury v Madison in 1803. And, as Michael Tanner notes, “between 1803 and 2002, the Supreme Court struck down as many as 1,315 laws on constitutional grounds.”
The Supreme Court would not be alone in finding the individual mandate unconstitutional. Twenty-eight state attorneys general, two district court judges and five circuit court judges, not to mention numerous legal experts, professors and organizations, filed briefs in support of overturning it.
Obama’s disdain for the Constitution is well established. The former constitutional law professor has said that the Constitution “reflects some deep flaws in American culture.” More recently he complained that “our founders designed a system that makes it more difficult to bring about change than I would like sometimes.”
With the Supreme Court at least an even bet to overturn his healthcare law, Obama is preparing for the worst, and is signaling that he’ll run against what he calls judicial activism should ObamaCare fail to pass constitutional muster.
If Obama does decide to take on the Supreme Court, he will have opened up a third front in his battle to win re-election: the Supreme Court, the Congress and religious institutions.
In The Audacity of Hope, Obama wrote that “the outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them.” These include “the separation of the national government into three co-equal branches,” which was “designed to diffuse power, check factions, balance interests and prevent tyranny by either the few or the many.”
Obama was correct that basic constitutional principles are not difficult to understand. But it’s become clear that he does not respect them. The president seems to believe that the other two “co-equal branches” exist to do his bidding. The legislative branch fought hard but ultimately acquiesced on healthcare. That leaves the court as the only branch remaining to prevent tyranny.