I have no idea if the Supreme Court of the United States will sustain or overturn the 2010 Affordable Care Act – or, as the law’s opponents like to call it, Obamacare.
You don’t know, either. That’s because the whole business is immensely complicated. If you want an idea of how complicated, go buy a thin, densely written book called “The Commerce Clause.” The author was a U. S. Supreme Court justice named Felix Frankfurter. I read it when I studied constitutional law at Temple University. Just writing about that book makes me yawn.
But that’s what this case is about – the commerce clause. It’s in Article 1, Section 8 of the U. S. Constitution, a fairly brief document (4,500 words or so) that says a number of seemingly contradictory things throughout. Conservatives focus on a few words and phrases they like and ignore all the others. Liberals do the same thing. The true meaning of all those words and phrases, in their totality, is the foundation of most of the political warfare in this country. It’s also why we have a Supreme Court of the United States to act as a referee.
Here’s the language that constitutes the foundation of this legal dispute: “The Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States … to regulate Commerce with foreign Nations, and among the several States …”
The issue the court confronts is whether the mandate contained in the law – the requirement that citizens without health insurance buy it or pay a fine to the government – fits properly within the powers that part of the Constitution gives the government. You can tell nothing about how the justices feel on this question from their questions and comments during oral arguments on the matter last week. I’ve watched too many oral arguments in appellate courts to attach much significance to what judges say under such circumstances.
What judges often are doing in such sessions is laying the foundation for their own, private arguments with their colleagues. When some judge on the other side of the question makes an argument in closed deliberations, the judge who asked the hard question can say, “I asked about that during the orals, and the excellent answer I got on that was this …”
So, trying to predict a decision based on questions asked during the orals is generally fruitless. What’s a better guide to determining the outcome is paying attention to what various justices have said before on the respective roles of the lawmaking and executive branches of government and the court’s. That seems to be what the President was trying to say the other day in reference to the court’s more conservative justices, but he ended up saying it badly.
What Obama said was, “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 just remind conservative commentators that for years what we’ve heard is [that] 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.”
He was wrong on a couple of points:
One, the Framers didn’t call for direct election of federal judges because they wanted them free from temporary political passions. Federal judges are not elected, but they are selected by both the President and the people’s representatives. That’s indirect election, but the selection of a federal judge is hardly the product of an antidemocratic process.
Two, it’s hardly unprecedented that the high court will overturn a law passed by Congress and signed by the President. They first did that 209 years ago. The Constitution doesn’t give the court that power in specific language, but records of the constitutional convention make clear that the Framers wanted the court to have it. Most of the states’ high courts had that power.
Obama’s real point, however, was that if you’re a conservative – if you believe that judges shouldn’t legislate from the bench but should generally defer to the will of the people as expressed through their elected representatives – then you shouldn’t be too eager to see any duly passed and signed law thrown out. That, he seemed to be arguing, should happen only when that law clearly violates the dictates of the Constitution – say, when Congress passes and the President signs a law that says that nobody can criticize any government action without suffering a penalty.
That law clearly would violate the First Amendment. Whether Obama’s health care law violates the commerce clause is nowhere near that obvious.
You also should remember the words of another constitutional scholar whom conservatives worship. He said, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.” That was Robert Bork, Ronald Reagan’s rejected U. S. Supreme Court nominee from the late 1980s, talking about the federal judiciary. Obama went nowhere near that far.
Nor did he go as far as Newt Gingrich back in December, when Gingrich complained about “radical judges.” Gingrich said that Congress, if it dislikes a judicial decision, can subpoena a judge to appear before Congress to defend his or her decision and send out U. S. marshals or the Capitol Police to take into custody any judge who ignores such a subpoena.
That hasn’t kept the Republicans from howling like hungry wolves that Obama is a bully for what he said and is trying to intimidate the court. The fact is that Obama, whether he was correct or incorrect in his observation – and I can see where he was dead wrong on several points — didn’t say anything that Republican conservatives haven’t been saying for years now.
Let us all be delivered from such naked hypocrisy, and be sure to visit my Web site atforpeoplewhothink.com.