Mr. President, political leaders from the Democratic side of the aisle are now preemptively charging the Supreme Court with judicial activism if it strikes down President Obama’s health care law as unconstitutional. I cannot remember when such a significant threat to judicial independence was made by attempting to affect the outcome of a pending case. It is an outrageous attack on the separation of powers.
The claim is that unless the Court rules in accordance with the policy preferences of the speaker, the Court’s decision would be illegitimate. That is dangerous and wrong. President Obama wrongly argued that it would be unprecedented for the Supreme Court to strike down a law that a large Congressional majority passed. He was wrong on the size of the majority and about the Supreme Court’s history in striking down laws as unconstitutional.
As a former constitutional law lecturer, he should know that the Supreme Court has done just that on many occasions over more than two centuries. And it’s just not the case, as Democrats claim, that the Supreme Court can strike down Obamacare only by failing to follow established Commerce Clause jurisprudence.
When the Judiciary Committee held a hearing last year on the constitutionality of the law, I asked whether the Supreme Court would need to overturn any of its precedents to strike down the individual mandate. None of the witnesses – most of them selected by the majority Democrats – could identify a single precedent. No matter how many times liberals repeat the statement, it just is not so: the Supreme Court would not be activist if it struck down Obamacare.
What is unprecedented is Obamacare’s infringement of personal liberty. The Constitution establishes a limited federal government. But when the Supreme Court asked him the obvious question of what limit to federal power would exist if the individual mandate were upheld, the Solicitor General could not, and did not, provide any answer. So the Obama Administration believes the federal government can force Americans to purchase broccoli or gym memberships. Don’t believe anyone who says otherwise.
Critics contend that the whole body of law allowing federal regulation of the economy would be threatened if the Supreme Court struck down Obamacare. They even say that such a ruling would harm the legitimacy of the Supreme Court. That is nonsense. The Supreme Court has never addressed a law like this. Striking down Obamacare would have no effect on any other existing law. The real change in the law – and to the country — would be if Obamacare were upheld.
People understand this instinctively. A recent Gallup poll found that 72 percent of Americans, including 56 percent of Democrats, believe that the individual mandate is unconstitutional. So they clearly would accept the legitimacy of a ruling striking it down. There is a constitutional law professor I’m familiar with who leans to the conservative side. He rarely discusses his work with his young children. But the health care case has generated such attention that his 8 year-old son asked him about it. The father explained that the case involved whether the government could make people buy health insurance. The son said, “They can’t do that. This is a free country.” So even eight-year-olds understand Obamacare’s overreach.
Unlike the supporters of Obamacare, who really never bothered to think through the law’s constitutionality before passing it, most Americans understand that this law threatens our freedom unlike any previous law. And I expect that the Supreme Court will agree. They understand that the law is not compatible with the Constitution and must be struck down.
It’s ridiculous to claim that striking down this law would be judicial activism. A ruling that Obamacare is unconstitutional would recognize that the law departed from the text of the Constitution, the structure of federalism, and history.
As former Judge McConnell has written, judicial activism cannot be defined one way when the meaning of actual constitutional text is at issue and another way when the words of the Constitution are silent on questions such as same-sex marriage and abortion. He wrote, “[T]here cannot be one set of rules for liberal justices and another set for conservatives.”
By threatening the Court in advance, the critics are showing that they now have real doubts that Obamacare is constitutional. Whether addressed to an individual Justice or to the Court as a whole, claims that only one possible result can be reached or the Court’s ruling would be illegitimate are shockingly improper attempts to influence a pending case.
But all the Justices seem to have agreed to combat what they see as any threat to their judicial independence. I suspect that inappropriate attempts to influence the Court’s decision on a pending case will backfire. They will make the Justices more determined than ever to show that they are adhering to their oath to defend the Constitution without regard to popular opinion. They will never want their rulings to appear to have been the result of political browbeating.
So let the Justices undertake their proper responsibility of deciding the constitutionality of Obamacare. Let them do it without threatening to pillory them in advance if we do not like the outcome. There is always time for reasoned criticism after the ruling.