Overturning Obamacare is not ‘judicial activism’

Courtesy of breitbart.com.

What do you do when you are a sitting president, your reelection campaign is just beginning, and there is a high likelihood that the Supreme Court of the United States will overturn your signature piece of legislation (or the most important portion of it)? If you are President Obama, you tell the Court it would be overstepping its bounds to rule the legislation unconstitutional.

Faced with the possibility that his Affordable Care Act would be overturned after oral arguments favored the law’s challengers, Obama came out swinging, accusing the Court of lacking “judicial restraint.”

The President called the act of ruling the law unconstitutional a “good example” of the “judicial activism” conservatives have warned permeates our legal system for years. He went further, saying it would be an “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

This is all before the law’s constitutionality, or at least the constitutionality of its health insurance mandate, has been decided by the Court. It is extraordinary for a sitting president to criticize the Court, in particular before a ruling is even issued. The Drudge Report’s headline Monday night, “Did he get a leak? Obama takes shot at Court,” captures just how surprising the President’s comments were, and how severe the situation may be for Obama’s presidency.

The healthcare law is already unpopular with a majority of Americans. According to the latest Rasmussen survey, 54% of Americans favor repeal, while 40% of Americans oppose repeal. The last time a public opinion poll was released with a plurality of Americans opposing repeal was more than a year ago.

With the general election campaign about to get under way, the administration has no desire to talk about Obamacare and the controversial mandate. Supreme Court oral arguments last week favored the 26-state legal challenge to the law, increasing the chances that the legislation’s controversial health insurance mandate will be overturned by the Court. The mandate requires all Americans to purchase insurance, which the administration argues is essential to the rest of the law). Obama’s comments Monday suggest the stark reality that his signature piece of legislation will be found unconstitutional.

The administration still insists that the Court will rule the law constitutional. There seems to no contingency plan. If the Court strikes down the entire law, Obama will be forced to answer questions about why he insisted on passing the law instead of focusing on the economy. If the Court strikes down just the mandate, the administration will need to decide what to do with the rest of the law during election season.

Obama’s team seemed to think a little prodding may help the law’s chances with the Court; suggesting that overturning Obamacare’s mandate would be “judicial activism” went a step too far. The law may be the defining legislation of Obama’s presidency, but this does not mean ruling the law unconstitutional would be the Court rooting for the conservative cause.

In a conversation I had a couple of year ago with former Supreme Court Justice David Souter, he dismissed my concerns about “judicial activism.” He claimed that “judicial activism” just means you are upset by the ruling. I opined that the term “judicial activism” is much more serious, and means a judge putting his or her own beliefs before what the law actually says and what the Founder’s original intent was. This is the problem I have with various Court rulings that required a broad interpretation of the Constitution.

The Court’s possible overturning of Obamacare does not qualify for the term, as there is no clear provision in the Constitution for the government to mandate that Americans purchase a product. If the Court does overturn Obamacare, this would be a check on the federal government’s authority, not the Court offering a broad interpretation.

The Obama administration has defended the legislation using the Commerce Clause, arguing that precedent allows Congress to compel Americans to buy health insurance or face a fine. Solicitor General Don Verrilli, Jr. warned the Court of the consequences to the insurance market if the mandate is ruled unconstitutional, but this is not the Court’s problem. The Supreme Court is supposed to check the federal government, not the other way around.

President Obama’s use of “judicial activism” is a gross misinterpretation of the term, and more of a political device to explain why such great legal minds on the Supreme Court would rule the healthcare mandate unconstitutional. Only a few weeks ago the administration was hoping for the support of Justice Scalia or Roberts to help keep the law from being overturned. Justice Kennedy, the usual wildcard, was seen by the administration as likely to back the law’s constitutionality. Times seem to have changed.

If the Supreme Court does overturn Obamacare, we should celebrate that we have a Court that can prevent the government from amassing too much power. When the Court forced President Nixon to hand over his Oval Office tapes in the early 1970s, it was widely admired that the Court had this authority. In a lot of countries, corruption would have caused a very different ruling in favor of Nixon. America’s independent judiciary is essential to the success of our democracy, and ruling Obamacare unconstitutional would show that the Court still has this independence.

President Obama should respect the Constitution and allow the Court to make its ruling. Chiding the Court before the ruling is made is “unprecedented,” not the Court overturning a law that grossly expands the government’s power over the individual. We need to work on fixing the health insurance market by giving people the ability to purchase insurance across state lines, completing tort reform and allowing the states to decide how to handle healthcare. More directives from the federal government are not the answer.

Tyler is a sophomore. You can reach him at tbecker1@swarthmore.edu.

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