President Obama’s warnings to the Supreme Court about its review of Obamacare were completely unpresidential and immature. It was a disappointing display from a president who has not lived up to the expectations of many Democrats, including me, who had hope for the future in 2008.
His comments in the 2010 State of the Unionaddress regarding the Citizens United v. FEC decision, a controversial campaign finance ruling, could have been excused, although criticizing the Supreme Court during such a speech is a bit childish. But his warnings several weeks ago display a poor conception of the judiciary and its role.
As the Wall Street Journal reports, President Obama said that if the Supreme Court struck down his prized health care legislation, it would be an “unprecedented, extraordinary step.” Furthermore, he pontificated “for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.” In this way, he joins the ranks of Presidents Andrew Jackson and Franklin D. Roosevelt in threatening the Supreme Court.
It is important to note that Jackson’s and Roosevelt’s amazing presidential leadership made up for, at least a little, their voracious desire for power; conversely, President Obama has nowhere to hide: He has not revolutionized American democracy, and although he aspires to FDR greatness, he has fallen far short of the bar.
His logic seems to suggest that the judiciary should bow to the beck and call of the other branches of government with little regard for the unconstitutionality of a “duly constituted and passed law,” although history paints a bit of a different picture.
Consider Korematsu v. United States, now considered one of the worst decisions of all time, in which the Court followed suit with the President and Congress in interning Japanese-American citizens. Perhaps even Dennis v. United States, in which the Court completely differed to Congress with regards to freedom of speech, upholding the villainous Smith Act, would be a better example of how, when the courts remain silent, totalitarianism may be unleashed. Using the President’s logic, Marbury v. Madison, which established judicial review, might never have been decided or even Brown v. Board of Education, which ruled segregated schools unconstitutional, since the Judiciary Act of 1789 and segregation was established by the federal and duly elected state officials all over the country, respectively.
President Obama does, though, have one thing correct: Conservatives are sounding a bit hypocritical. They decry Warren Court-style jurisprudence, but when it comes to a law they don’t like, they urge the Court to act. A more consistent approach to the judiciary would be favorable, but then again, President Obama is being hypocritical in the reverse way.
And Obama is mistaken in his opinion with regard to his prized legislative masterpiece: the Patient Protection and Affordable Care Act. It should be overturned and here’s why:
First and foremost, the individual mandate has got to go. I completely understand the Obama Administration’s position on the importance of what it has come to view as the crux of the law: Without the individual mandate, it becomes incredibly unfair to force insurance companies to insure people regardless of pre-existing conditions. Nonetheless, this individual mandate is repugnant to my view of liberty – one which encompasses a right to privacy that grants the individual the prerogative to make freely personal choices about his own health.
The right to privacy that prevents the government from banning birth control (Griswold v. Connecticut), abortion (Roe v. Wade), and consensual homosexual sex (Lawrence v. Texas) is the same right to privacy that protects the individual from the yoke of oppression of a government that decrees he must buy health insurance or else. This right to privacy affords to each and every American citizen the leeway to make personal decisions without penalty of law and fine. To say that Americans can live in a country without any regulations would be to support anarchy; but, conversely, to say that Americans should live in a country in which the government first mandates health insurance would set the United States on a crash course to autocracy and would cast aside substantive liberty in this country – a cornerstone of American Constitutional law since the Supreme Court’s opinion in Meyer v. Nebraska.
First, the federal government wants to force health insurance on us all – next it could be forcing certain operations, pooling medical charts and creating a central database, slowly but surely corroding the intimacy of the privileged relationship of doctor and patient. Although mentioning the proverbial slippery slope is undoubtedly a “what-if” argument, based only on hypothetical possibilities, these possibilities become more tangible and less hypothetical by the second without cognizance as to irreparable damage to civil liberties this law is inflicting.
On a more technical note, this individual mandate also, in my opinion, violates the Commerce Clause, although the health insurance regulations do not. From the mandate perspective, the commerce clause only grants the federal government authority to regulate existing interstate commerce clause. Since these people have not already purchased the insurance, there is no existing commerce; therefore, the commerce clause does not justify this mandate (in case substantive liberty is too abstract).
The provisions, however, forcing the insurance companies to accept people with pre-existing conditions and cover children on their parents’ plan until they reach the age of 26, as well as parts of the law that force certain restaurants to post counts of the calories on their menus, are constitutional – a power the federal government possesses squarely within the commerce clause.
Anyone who argues health care is not an interstate business overlooks the fact that there are numerous health care companies with thousands of customers all over the country. Although this form of commerce is not as traditional as items tangibly crossing interstate lines, it is indisputable that the health-care industry does involve the dispensing of product (in this case health insurance) over state borders; likewise, as the Warren Court heroically ruled in Heart of Atlanta Motel v. United States, the restaurant industry can be regulated through their dependence on food crossing state lines. By this same logic, it seems the health industry, as well as the restaurant industry with regards to calorie postings on menus, would fall under the direction of the Commerce Clause as well.
Without the individual mandate, though, the provisions governing the insurance companies seem highly unfair. In order for the system to work, there must be some incentive for people to purchase health care while they’re still healthy to fund the insurance for those who aren’t. Perhaps for more socialistic democracies in Europe, universal health care is ideologically compatible, but for America, whose economy is nestled somewhere cozily between capitalism and socialism (closer to the capitalism side though), such a scene is not well-suited for our balanced economy.
Nor is a President who says an utterly untrue political remark intended to intimidate Supreme Court justices – thank goodness for Judge Jerry Smith of the Fifth Circuit Court of Appeals, who ordered the Department of Justice to submit a no less than three-page, single-spaced letter explaining the President’s remark. At least there are people like him around to keep us cognizant of the importance of the judiciary – and remind the more raucous executive branch that much of modern society and the civil liberties we have come to cherish today are rooted in ground-breaking judicial opinions.