It is perhaps understandable that President Obama is a little testy as he waits for the Supreme Court to decide on the constitutionality of the Patient Protection and Affordable Care Act. There is a good reason it is called Obamacare: the president invested enormous amounts of time and political capital into the legislation during his first 14 months in office. This at a time when many Americans thought the first priority should be dealing with the financial crisis and loss of jobs.
So Obama perhaps had not fully thought through his comments last Monday of this week when he strongly criticized the Supreme Court’s right to declare his law unconstitutional. The comments came at the end of an otherwise pretty reasonable answer to a question about the pending court decision at a joint press conference with the leaders of Canada and Mexico. Obama probably was hoping to talk about other issues. The fact that he backed away from those comments the next day tempts me to give him a pass. However, what presidents say matters and Obama did after all teach Constitutional Law earlier in his career. Moreover, if the statements presage a strategy of attacking the Court’s legitimacy should it strike down part or all of the health care law, it is good to deal with the issues now.
Here is what Obama said at the end of his answer to a question about the Court’s possible decision against the law:
And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.
Ultimately, I’m 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. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
The next day at an Associated Press lunch he somewhat qualified these remarks:
Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.
And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.
Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has. As a consequence, we’re not spending a whole bunch of time planning for contingencies.
So what should we make of this? That Obama should not even think about going down this road.
First, Obama is wrong in asserting that the mandate is necessary to ensure that people with preexisting care get coverage. There are at least two other ways; a single payer system in which everyone is covered by the same government plan and a program of individual subsidies that ensure give each individual the purchasing power to buy coverage on their own. Obama did oppose the mandate during the election. Still there is little question that striking down the mandate would have a significant effect on the health care act even if the Court left large parts of it intact.
First, Obama is right in his clarifying remarks to affirm that it is the Supreme Court and not the President of the United States, that determines the Constitutionality of federal laws. It has been so ever since Marbury v. Madison. Although the Constitution did not squarely deal with the issue, it is hard to see how it could be otherwise in a strong Constitutional system. Having either Congress or the President pass on the Constitutionality of the laws that they themselves pass and sign would severely weaken the power of Constitutional protections, including the Bill of Rights.
We hope that judges do not decide cases based on pure political ideology or the identity of the parties in a particular case. But it is inevitable that they bring with them personal views about the role of the Constitution, the permissible power of the Courts, and the relative strength of the competing legal principles that necessarily conflict in the most difficult cases. We abide by their decision not because they are right, but because they are chosen by a political process widely regarded as fair and because abiding by their decision and moving on is better than fighting endlessly over the merits of the case.
In this case the Court must deal directly with the federal government’s power over our economy. Despite the demurs of its proponents, if the health care act is upheld, it is hard to see what effective limits the Constitution puts on the Commerce Clause. Some people may not be bothered by the lack of limits. Others are. It is an important question.
It is worthwhile to look at the cases that support Obama’s views. In Lochner v. New York (1905), the case Obama cites, the Supreme Court struck down a New York law that prohibited bakers from working more than 10 hours a day or 60 hours a week. Given that many people work these hours today at some point in their careers, such a law might strike many Americans as an infringement of personal liberty. In Wickard v. Filburn (1942) the Court upheld the federal government’s power to punish someone for growing wheat for their own consumption. This has always struck me as Orwellian, but it is a logical outcome of denying the rationale in Lochner that individuals have an inherent right to engage in contracts that have at most de minimus effects on those around them. The exercise of such power can only be driven by a belief that Congress is better able to shape large sectors of the economy than are millions of individuals voluntarily interacting to pursue their own interests.
During oral arguments the Administration was not able to articulate a clear line that would limit federal commerce powers if the health care law was upheld. A decision striking down the law would asset that there is a limit to the federal government’s ability to control the economy.
The partisan nature of Obama’s comments can be seen by comparing his position on this law to his confusing position on the Defense of Marriage Act. The health care act passed the House of Representatives by 219-212 and the Senate by 60-39. No Republican voted for it. Despite over two years of effort, the public still opposes the bill. The Real Clear Politics average of polls taken between February 14th and April 1 shows the margin of opposition is 9.3 percent. According to a National Journal poll, 66 percent of the public thinks that the federal government should not be able to require individuals to purchase health insurance. Only 28 percent support the mandate. According to a Gallup poll, 72 percent of Americans, including 56 percent of Democrats think the mandate is unconstitutional. We do not decide Constitutional issues by popular poll, but if the Court does strike down the law, Americans are unlikely to express outrage.
Compare this to the Defense of Marriage Act, a bill passed in the heat of a political moment which will surely go down as being on the wrong side of history. The bill, which defines marriage for federal purposes as the union of a man and a woman, passed the House 342-67 and the Senate 85-14 and was signed by President Clinton. This was not a party line vote, 188 House Democrats and 32 Democratic Senators voted for it. Obama, who is still making up his mind about gay marriage, has adopted the curious position that Section 3 of the law is unconstitutional and, despite his Constitutional obligation to uphold the laws of the land, refuses to defend it against court challenges. In fact, his administration recently filed a brief arguing that the federal courts should strike it down. Obama will, however, enforce the law until that happens. Apparently.
Section 3 of the Defense of Marriage Act simply exercises the ability of Congress to interpret its own laws. It cannot possibly be held unconstitutional unless the Supreme Court makes homosexuality a protected class, which it may do. If it does, it is hard to believe that Obama will regard it as “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Does anyone think Obama would be outraged if the Court struck down this law?
Finally, it is worth looking at what constitutes judicial activism. The conservative arguments against judicial activism are not directed solely at justices who strike down laws. It arose mainly out of an era where federal judges took it on to themselves not only to declare explicit segregation illegal but to take an active role in designing busing plans for cities like Boston. There is a big difference between courts striking down laws they think are unconstitutional and courts enforcing laws they thing legislators should pass.
In a recent editorial, Mark Penn advised Obama to make the best of an adverse Court decision rather than using it as a pretext to attack the Court’s legitimacy. It is good advice.