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Constitutional law vs. rhetoric

By Walt Braun

If the best case President Obama can make for upholding the Affordable Care Act is the one he made Monday, then the president’s signature health care initiative is in dire straits indeed.

Obama challenged the Supreme Court to uphold the health-care reform legislation, arguing that overturning it would amount to an “unprecedented, extraordinary step” of judicial activism.

“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,” he said.

Whatever one thinks of Obamacare or of the Supreme Court’s anticipated ruling, the president’s Monday remarks left him with plenty to back away from. Indeed, he appeared to back down a few degrees from that hyperbolic and frankly erroneous position later in the week, probably because his initial statements were so obviously indefensible. Speaking to a newspaper editors board Tuesday, he said he did not intend to question the court’s power to strike down a statute, but did believe that exercising it in a situation involving Congress’ ability to regulate commerce would be remarkable.

The Tuesday statement wasn’t a lot better because it still appeared to argue that the Court should refrain from striking down a measure it found in violation of the Constitution if it also found that measure to be a net social good. The opposite of the president’s statement would be more accurate: The Court has an obligation to strike down a law it finds to be in violation of the Constitution even if it deems that law to be a net social good.

Assuming the law is overturned on Constitutional grounds, that action would hardly rise to the level of judicial activism. Indeed, it would be hard to imagine anything less activist since judicial review has been central to judicial performance since Marbury vs. Madison.

The topic of judicial activism arises when the judiciary goes beyond judicial review toward judicial legislating, something that is not in play in this matter. Certainly Mr. Obama must agree that as a general precept, the court properly stands between lawmakers and the making of unconstitutional legislation.

The only reasonable way to interpret the president’s Monday comment was as a raw exercise of political rhetoric, presumably designed to fire up the base and/or the less philosophically inclined.

Politicians are as a breed generally good at such rhetorical flourishes, and the president is better than most. The impact is naturally magnified by the bully pulpit he occupies. 

None of the above asserts that the law in question is in fact unconstitutional. That’s for the judges to decide. They might rule either way on constitutional bases, or on the basis of their own individual prejudices. If they do the latter, they deserve criticism. But if they do the former, whichever way the ruling breaks, they will have fulfilled their constitutional duties. And even if that decision goes against the president and the law’s backers, the president will still have a viable, if not from his standpoint a desirable option: push for an amendment to the Constitution.









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