The oral arguements in the Obamacare Supreme Court battle have been played out and commentators have looked for clues in the Justices’ questioning as to how they will come down in their ruling. It now appears that President Obama has a bad feeling about the course of his individual mandate specifically and the whole bill generally, but is he willing to go the additional mile and channel his inner Andrew Jackson to defy the Supreme Court outright? His quote yesterday seemed to open up that possibility:
“…I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care… Ultimately, 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’d just remind conservative commentators that for years what we’ve heard is, 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. Well, this is a good example.”
In the 1830’s President Andrew Jackson had been ordered by the court to honor the Cherokee Indian tribe’s claim to their lands in Georgia, Tennessee, and North Carolina, after receiving the ruling he balked and reportedly told the court that they can issue any ruling that they wanted but that they had no power to enforce it. Subsequently, the Cherokee’s would be removed and carted along the “Trail of Tears” to Oklahoma.
President Obama has now suggested that for the court to overturn Obamacare would be “unprecedented” and an “extraordinary step.” It is this kind of language that would be used should he decide that he will not enforce the Court’s decision and ram through Obamacare anyway by means of executive fiat. At first glance, this would seem to be politically unwise as the majority of the American people are opposed to Obamacare, however, the President desperately needs to look strong and in the bubble that is the Obama White House this may be thought of as a good idea.
It should be noted that the Court is not always right, and does not always have to be honored. For instance, the Dred Scott decision before the Civil War was completely unjust and ultimately bore no authority over those who were helping slaves escape to freedom. Likewise, the 1973 Roe. v. Wade decision was an unjust ruling that violated the 14th Amendment, and Congress would be well within their rights to pass Personhood legislation based upon the 14th Amendment and dare the Supreme Court to stop them. Princeton law professor, Robert George has written about this possibility. So certainly, the executive and legislative brances can act as checks upon the power of the Court.
However, in this instance a former Congress and the current President have attempted to create a “right,” not to health care, but to health insurance. This artificially created right has been accompanied by a mandate to buy a product. This is blatantly unconstitutional. While the Court does not have the authority to legislate from the bench or create new rights, it also does not have the authority to affirm unjust laws, and that is exactly what Obamacare is.