As the drama surrounding the Supreme Court’s consideration of the legitimacy of the Affordable HealthCare and Patient Protection Act (Obamacare) continues to deepen and to attract widespread intellectual, legal and political attention, certain things are already clear. The healthcare industry does fall within the boundaries of the commerce clause of the U.S. Constitution, and Congress does have the authority to regulate interstate commerce.
The healthcare law is an act of Congress which attempts to do what Congress is authorized to do. The Supreme Court has rarely overturned congressional acts which fit within those boundaries and, in fact, only one other time since 1937 and President Roosevelt’s New Deal legislation (the National Industrial Recovery Act and the Bituminous Coal Conservation Act), has the court taken that drastic step (the Rehnquist court overturned the Violence Against Women Act in 2000).
The issue of whether the individual mandate–requiring all Americans to either purchase healthcare insurance or pay a fine for not doing so–is within Congress’ authority as part of its handling of the commerce clause, is the primary issue before the court.
Whether Americans love or detest the law, or are highly knowledgeable or deeply ignorant of the legislation, is not relevant to this particular case. This is not to say public opinion has no influence on the consideration of the justices–it does. It is secondary influence, however, and will not be the game changer in this process.
What startled some legal and political analysts was the conclusion, after viewing and listening to the justices interrogate the government and the state plaintiffs in this case a few days ago, that some of the court members clearly expressed their dislike for the law and seemed to be openly hostile to it. The politics of judicial consideration seemed to be more important, at least for those three days of testimony and questions, than the constitutionality question.
So, on Monday, in a speech articulating the differences between the Republican-sponsored budget proposal and the Democratic Party’s economic vision, in response to a reporter’s question, the president took the time to put a little pressure on the court not to be a body of judicial activists supporting partisan causes but to continue court precedence and deference to Congress on matters like the HealthCare Act.
Roundly criticized predictably by Republicans and other conservatives, but also by some liberals, the president’s move to “take it to the streets” on the court was bold, audacious and risky. It was also the sign of a confident leader who acts in what he or she thinks to be the best interest of the majority of Americans, rather than simply sitting back and waiting to see what happens in such an important matter. In current campaign literature, the HealthCare Act is being touted as part of the change the president promised America, so the Obama’s preemptive comments make sense as part of his recognition of the difficulties justices will have in correctly assessing the HealthCare Act.
Most of that umbrage said that the president was trying to ‘bully’ the court, ‘intimidate’ the Court, or set up a scenario in which the court’s credibility and/or authority are severely challenged, if the body rules against the constitutionality of the HealthCare law. In other words, critics said the president was calling the court out, even before a proper ruling has been done and released to the public.
Actually, most of the pundits and commentators, including the Huffington Post, the New York Times, the Wall Street Journal, inter alia, missed the point. The president did not fumble the ball on this issue. Instead, what he did, both on Monday and again in his clarifying remarks on Tuesday, was to publicly communicate to Chief Justice John Roberts, and Justice Anthony Kennedy, the two who will most likely cast the deciding votes, to do what they do best, stick to the intent of the Framers of the Constitution and allow Congress to write the legislation that it collectively thinks is best for the public. This should not become a battle over the authority of each branch of our tripartite government; and it should not become a challenge to the court’s power of judicial review.
To say that the issue should not be partisan among the justices is a waste of paper–it clearly will be. Cooler, more precedent-oriented heads should prevail. The president–without using Twitter, Facebook or other social media–used his ‘bully pulpit’ to call out Justices Roberts and Kennedy to not just do the right thing, but to do the constitutionally appropriate thing, whether it is politically correct or not.
Professor David L. Horne is founder and executive director of PAPPEI, the Pan African Public Policy and Ethical Institute, which is a new 501(c)(3) pending community-based organization or non-governmental organization (NGO). It is the stepparent organization for the California Black Think Tank which still operates and which meets every fourth Friday.
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