The president bizarrely ascended his bully pulpit after a long weekend of acerbic stewing to openly admonish the Supreme Court it wouldn’t dare overturn the Obamacare law. After all, that byzantine monstrosity was lovingly crafted by the Democrat Party to enshrine the left’s dreams of a bureaucratic utopia as a permanent fixture in the American legal architecture. But the timing of such unseemly grandstanding might have been the cue for Michelle to start warming up in the wings to belt out the Swan Song for Obamacare’s interminable libretto.
In one scant week of deliberation on the law, we saw the Supreme Court’s nearly comical obliteration of Obamacare on its constitutional merits or lack thereof. In what appeared at times to be a court circus, the administration’s advocates contorted in legalistic acrobatics responding to queries that featured the nagging “limiting question” of what the government cannot do if Obamacare is Constitutional. At one point, Justice Scalia had to interrupt the president’s latest Solicitor General Donald Verelli with the pointed comment, “We’re not stupid.” The administration’s arguments were that mendacious.
Why the Law Will Likely Be Found Unconstitutional
The main method of vivisection appeared to be reductio ad absurdum. Justice Scalia asked if the government could make us eat broccoli, in a replay of Florida Judge Vinson’s criticism. Justice Roberts queried whether or not all citizens could be compelled to buy cellphones in the event of emergency. And certainly, if the government can force us to purchase health insurance or pay a fine, then it can make us buy other people’s condoms, lubrication, or other sexual facilitators. One wonders if the government could force us to subscribe to HBO so that Bill Maher can have equal time to call Republican women nasty epithets. Liberal imagination would be the only limit.
The SCOTUS’ deliberations ended on March 30th, meaning that although the court’s minds are likely made up, the ruling will likely not be issued until the end of June. This makes the occasion for President Obama’s exhortation to the court not to overturn the law a bit strange. The president argued that voiding the law on Constitutional grounds would be “an unprecedented, extraordinary step, since it was passed by a majority of members in the House and Senate.”
But surely the Constitutional scholar knows that laws have been found unconstitutional, including the Great Depression-era A.L.A. Schechter Poultry Corp. v. United States. In a case that was seemingly torn from the pages of Atlas Shrugged (a weighty tome not even half the size of the 2,700 page Obamacare bill), the government claimed power through the Interstate Commerce Clause to micro-regulate the poultry industry for “codes of unfair competition.” The ruling against the United States in Schechter essentially gutted the National Industrial Recovery Act, a fate conservatives and many independents hope for Obamacare.
Even more mystifying in Mr. Obama’s comments is the insinuation that the democratic process of legislation trumps constitutionality. The implications of this are many, but we will constrain our comments to the issue of the argued constitutionality of this law. In addition to ignoring Marbury v. Madison, in which Justice Marshall affirms the power of the court to judicial review, a relevant matter commented upon elsewhere, the President seems to dismiss the Federalist Papers, which were historically important arguments made on behalf of ratifying The Constitution:
No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents.
… A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. — Federalist No. 78
The extended comment above was provided to shed some light on Mr. Obama’s personality, a matter that will be addressed further below. Article III, Section II of The Constitution makes the point even more plain:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…
The Patient Protection and Affordable Care Act, or Obamacare, is indeed a law subject to be adjudicated according to the law of the land, which is the United States Constitution, by its appointed stewards in the Supreme Court. But even the Constitutional scholar (who somehow left no appreciable record of his legal reasoning) is well aware of this court’s jurisdiction to decide the Constitutionality of the bill. Floor roll call margins have no bearing on the matter.
President Obama Believes He is Above The Constitution and the Rule of Law
We can adjudge Mr. Obama’s hostility to The Constitution by his comments on its “fundamental flaw” – meaning its acknowledgement of the institution of slavery. This is not the axe to grind, because slavery was an abomination. But surely the president knows that the importation of slaves was slated to be banned from the onset of The Constitution’s ratification. This is important because of his misrepresentation that The Founders had a “blind spot” on the issue. They did not. Even the slaveholder Thomas Jefferson thought the practice of slavery should be abolished.
Mr. Obama said on a separate occasion that the law of the land was a charter of “negative liberties” that did not say what the government must do “on your behalf.” Such a statement elides the matter of means, which entails the related matter of the government doing something to people. And of course, one would be remiss not to point out that The Constitution’s animating principles are to be found in the Preamble, which every good fifth grade student used to know by heart. The real source of President Obama’s animus is that in America we have limited government and the rule of law.
Barack Obama continues to interject himself into the due process of our legal system as if he somehow personally transcends it. The last time our heralded messianic leader did so was at the 2010 State of the Union address. During the prime-time event, the president used his captive audience to upbraid the Supreme Court’s decision in Citizens United to side with the First Amendment over left-wing unions that would like to see corporations silenced during political campaigns. In the case that caused a cascading ripple of leftist furor across the blogosphere, resident swing-voter Justice Anthony Kennedy wrote the prevailing opinion.
There were other times when the president seemed to feel himself unconstrained by the petty formalities of constitutionality. There was the president’s jumping of the gun to force British Petroleum to establish a $20 billion victims fund, which short-circuited due process. There was his strong-arming in the General Motors bankruptcy (arguably violating Article I, Section 8 uniform bankruptcy laws), which led to a boon for the politically allied UAW and a short-shrifting of GM’s bondholders. Tellingly, during Obama’s recent lashing out at the Supreme Court, he reasoned speciously that “We are confident that this will be upheld because it should be upheld.” Such circular reasoning was anticipated by NRO commentator Jonah Goldberg.
As the philosopher John Locke put it:
…it is unreasonable for men to be judges in their own cases, that selflove will make men partial to themselves and their friends: and on the other side, that ill nature, passion and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men.
Speaking of being judges in our own cases, there is the matter of Justice Elena Kagan being a Justice presiding over a case regarding a law whose merits she argued as Solicitor General before the Supreme Court. The federal code is clear on advising judges when they should recuse themselves:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances: […]
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
Perhaps judicial activist and Obama appointee Elena Kagan needs to be reminded after the election of the Constitutional provision that judges shall keep their offices only while they exhibit “good behavior.” Politicizing the bench does not qualify as such.
Relatedly, Mr. Obama chided his opposition during his little tirade:
I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint. That a 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.
It is highly ironic that one of the two Supreme Court Justices that President Obama nominated for the office, Justice Sonia Sotomayor, was actually caught on tape bragging about policy being made at the federal court level. And just this week, Elena Kagan seemed to counter-argue against suggestions that Obamacare be scrapped in its entirety, based not on the law, but by her own personal estimate that it is a good program. So the president will have to forgive us conservatives if we dismiss the “judicial activism” chastisement. And there may even be a case for an ‘activist’ court that returns liberty to the people when the laws contradict the spirit of limited government that inhabits The Constitution.
President Obama Attacking the Supreme Court is a Sign of Political Weakness
So while the president may be “confident” that his favored program will be preserved, there is good reason to question his cocksure disposition. Usually when a political figure begins speaking of confidence, that is a sure sign that he is unconfident and attempting to harness enough public opinion to conjure up a certain result. It is a case of trying to create a self-fulfilling prophesy. Wishful thinking may thus play some role in Mr. Obama’s recent pre-emptive commentary on the case. If his signature piece of legislation (as he put it — “Obama cares”) should go down in flames, that may not only be the end of the bill, but the end of his bid for the presidency.
Contrary to some political operators’ delusional attempts to glean something positive out of these ill omens, the defeat of Obamacare would shred any claim the president had to instituting a major policy of lasting, positive consequence. The stimulus failed by its own measure of keeping unemployment under 8%; and that official number doesn’t even count the millions who are underemployed or have given up. The wars were not ended in a timely fashion as promised to his base, and the War in Afghanistan grows increasingly unpopular. Even the assassination of Osama bin Laden seems to have been forgotten over the span of a week, due to the real hardship that is occurring in this country — hardship that our faux-compassionate president seems inured to addressing. Instead, he literally went for broke jamming a Rooseveltian boondoggle down our throats. The regurgitation has begun.
What this all adds up to is not only a broken bill, but a broken presidency. If the dream of universal healthcare is obliterated, the emperor truly has no clothes. The spectacle of Obama’s failure will be unveiled for all to behold, and the president will be relegated to campaigning in nothing but naked vainglory.
Kyle Becker blogs at RogueGovernment, and can be followed on Twitter as @RogueOperator1. He writes freelance for several publications, including American Thinker and Own the Narrative, and is a regular commentator on the late night talk show TB-TV.