“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.” — Barack Obama, on the constitutional challenge to his health care law, April 2
“Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.
In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.
With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.
Obamacare passed the Congress without a single vote from the opposition party — in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.
The president’s preemptive attack on the court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.
Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the Commerce Clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What then is the limiting principle?
Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.
Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, the Congress is omnipotent, authorized by the Commerce Clause to regulate “every human activity from cradle to grave.”
QED.
Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”
Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lockstep support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.
Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.
As was Rep. Phil Hare, D-Ill. As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by the more constitutionally attuned owner of an East Moline pizza shop.
Charles Krauthammer’s email address is letters@charleskrauthammer.com.
It was so bad even one of the libber judges
had to keep trying to get the govt lawyer to stop
calling it a tax. She kept force feeding him to say
“penalty” and even then he didn’t get her hints and
kept saying tax. Another justice came out with the brilliant
comment that what is so wrong about the govt giving a
BOATLOAD OF FREE MONEY out. No wonder she went to
Harvard, she doesn’t even know that the govt doesn’t have
“free money” to give out. That money is confiscated from US,
those of us who pay taxes. And this arrogant president, stands
up and lies about “precedent”. A majority passed the law he says.
Another 1/2 truth. It was passed in the house by a slim margin
strictly by party lines. In the senate they bribed and bought votes.
But he makes it sound like it was overwhelmingly passed. This
guy is the biggest phoney who has ever been president. But the sheep
still follow.
Democratic arrogance at its height is passing a law against the will of the majority of the people.
You have a deep misunderstanding of representative democracy, it seems. The government would do practically nothing if we relied of popular approval of every single proposal. Republicans do it all the time, too. (See Invasion of Iraq, 2003 for one example).
Furthermore, how many people in the country have read the entire 2000 plus pages of the ACA? People who haven’t read the entire law have no right to tear it down in comment threads or elsewhere. This includes Scalia, who objected to being asked to read it before voting against it.
A piece of legislation so wide sweeping that it touches every person in the country demands to be passed in a bipartisan fashion. Otherwise it will face widespread opposition and challenge at every level.
As for Iraq. The thing is the decision to go to war was a bipartisan one. Those voting in favor included VP Joe Biden, Senate Majority leader Harry Reid and current Sec Of State Hillary Clinton. The final passage of ACA was accomplished by arm-twisting lies and deceit. Ask defeated Congressman D-Stupak and 20 or so of his buddies the people threw out of office.
It would also help if the Congress understood some basic Constitutional law.
Good comment. I think it’s time for the 2 party system to go the way of the Edsel. It has stopped working, We need a non partisan government in order to function. Our elected officials are so locked up in us vs. them that they can hardly do anything beneficial anymore. The days of political favoritism are over. We are apolitical when we go to work , buy gas or groceries …well you get my point. We need a government of the people , not of career politicians. We need term limits to rid ourselves of career politicians. We need them on the same health plan as us , on social security retirement ,on minimum wage, without expense accounts or assistants or free postage etc…We need to be rid of PAC’s and lobbiests.We need a truely ” citizen ” form of government. This country is going downhill fast and the blame can be placed on both parties , politicians who are more concerned with reelection than with what is good for the country. We need a real leader and no one is in sight.
“arm twisting lies and deceit” That sounds like politics as usual. You find this somehow new? Your naivety is surprising.
You usually are not compelled to do that to your allies.
Why is the mandate to pay for medicare different? They take that right out of the paycheck. Why are conservatives suddenly against accountability? They are all arguing for free-riders all of a sudden. Is it just my old liberal self that thinks people should pay their own way? Why should employers get hammered on premiums just because some 25 year old decides he doesn’t want to pay for coverage and then he wrecks his car and costs us a million dollars?
This is being fought because it is an Obama administration plan, not on the merits. Nobody has argued the federal government can’t mandate action in the 75 years we have had social security and medicare. This is partisan BS, plain and simple. This law smacks of conservative ideology (Heritage Foundation wrote most of it, including the mandate). Now it is a socialist plot. How many other socialist plots are they hatching over there at the Heritage Foundation?
The ability to appreciate the merits of the other side of a question is a
hallmark of the liberal spirit. ~~~~~
John Stuart Mill
Mr Mill would surely be disappointed to see that liberalism has become reduced to defining what its opposition says instead of listening to what it is really saying.
Liberalism is still the only source of ideas to improve our society. Name me just one significant accomplishment the conservatives have brought us in twenty years. Just one policy that has made lives better for working americans. Just one…..
The difference here is that the administration did not suggest a tax to fund the ACA. Instead they made it a mandate that individuals had to purchase a product. They could have made it like Medicare for all–but that would have resulted in a huge tax increase, something that most people would have been outraged over in a time of economic hardship.
The constitutional argument about the ACA will result in much more than just mere politics against Obama. The court’s decision will start to set the boundaries of what government can and cannot do under the commerce clause. Whenever a court case as big as this one comes around, the side that seems to be losing always wants to criticize the justices as “playing politics” or “being activist”. I think a history of the court shows that they are surprisingly not very political one way or the other.
” I think a history of the court shows that they are surprisingly not very political one way or the other.”
You OBVIOUSLY don’t know your history if you’re going to make a ridiculous comment like that.
Similarly, they force me to buy health insurance and save for my elder years through Social Security and Medicare. The insurance companies were spared the pain of a single payer solution. In retrospect, that kindness has met with abject hostility. The congress should have left them to die, as they would any of us should we cost too much.
A bipartisan decision based on intelligence that was known to be bad yet presented to Congress anyway. Like General Colin Powell prophetically warned, “you break, you own it.”
As for your claims of “arm twisting” and “lies” where’s your proof. Like most conservatives, you resort to lies and distortions of the truth to make your case. Doesn’t say much for your case, or you, for that matter.
I think it’s silly to pretend that “Obamacare” had a bad reputation on the merits alone. It was a year long process with every ridiculous smear imaginable used (ex. death panels). If you break down the law and get specific, there is broad support for much of what the law offers. You really think we’re ever going to go back to allowing insurance companies denying benefits with unfair caps and denying pre-existing conditions?
Those positive items could have been addressed without the over reaching law we now have in place. They also probably could have put those changes you mention in place without Constitutional challenge if they had chosen to negotiate. The Democrats didn’t want to do that. They took the approach that they know what is best for everyone in every circumstance. As a result they got the Constitutional challenge such arrogance deserves.
No, Republicans didn’t want to do that. There were so many concessions and there was literal desperation to have Republicans come on board (so much so that the Democratic base was turned off). The mandate was a Republican proposal. It was used as a compromise instead of having a public option — to avoid screams of socialism, guess they shouldn’t have even bothered.
Your characterizations are, as usual, laughable and false.
Absolutely false. There were a couple of meeting between Republicans and Obama at the White House but that was all. Even Olympia Snowe was disgusted at the lack of cooperation from the WH and said so recently as she resigned. She even said she had not spoken to the President in about two years.
The difficulty the WH was having was with their own moderate Democratic membership Bart Stupak et al.
The only movement from the White House on the entire issue was to pacify the blue dog Democrats who did not want to vote for it.
Remember that NO Republican voted for it and they were joined by 34 Democrats in opposition.
Your reinvention of the story is an outright lie.
You’re going to pretend that the mandate wasn’t a Republican proposal and it wasn’t a concession? Get real.
The entire law was written WITHOUT Republican input. If there was a problem or any negotiating it was entirely within different wings of the Democratic Party. Lie your way out of that.
So you are going to pretend then. I’m not the one lying.
Please source that the mandate was was written into the ACA by Republicans. You can’t. Please show me where any Republican Congressman voted for such a thing. You can’t.
LOL. That’s not what I said, so chill out, bonhomme.
The insurance mandate WAS a Republican proposal. It began in the 90s as an alternative to the Clinton plan. Even the Heritage Foundation embraced the idea. So keep screaming “you can’t”, but it’s not going to erase history. Obama initially wanted a public option, but he also wanted broad support for the law, so that was ditched and instead the mandate was used.
It’s kind of stupid for you to try and knock me for things I didn’t say. But again, that is typical of your behavior.
You never lose arguements well but often
I really don’t care what a racist thinks of me.
There was no portion of the current healthcare law that was written by The Republicans. None.
I didn’t say that. I said aspects were Republican proposals and aspects were concessions. That’s fact. You’re just arguing against yourself.
Any concessions that were made were internal to Democratic party politics. No Republican voted for the final version of the ACA.
A Republican voting for it isn’t a contingent. There can still be concessions without a Republican vote. Democrats were courting specific Republicans until the very end. Fact.
The may have been looking for a “token” in order to call it bipartisan. If there was any bi-partisanship it was on the side opposing the ACA. 34 Democrats voted with Republicans in an attempt to defeat the law. The concessions were aimed at getting the Democrats united in favor of the law. They barely got enough of those by lying to Bart Stupak-D.
And so it remains, there were concessions and Republican proposals included. ;-)
Yes but only to fellow Democrats… Active imagination you have.
Whatever happened to that poster who used to say, “BOOM, ROASTED!”
Do you ever get tired of back-pedaling?
So are you joining in the lie?
Stupak is a moderate D now? Blanche Lincoln and Ben Nelson were moderates too, huh? You sure are reaching.
Yes. He was.
http://en.wikipedia.org/wiki/Bart_Stupak
Not many left as the radicals took over and their seats were taken by Republicans in the last election.
The bill that passed as Obamacare as you call it was written in the Senate by a small group of “Blue Dog” (conservative) Democrats and moderate Republicans.
More manufactured outrage by Krauthammer.
ABO
Obama’s statement about the Supreme Court was so egregious that even the American Bar Association issued a statement criticizing it:
“President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.”
http://www.americanbar.org/content/dam/aba/administrative/office_president/robinsonstatementobamaonhealthcare.authcheckdam.pdf
Sounds like you’re trying to score political points through the courts — exactly what the letter you cite denounces. Good thing you only copy and pasted the parts you liked though! ;-)
On this thing called the interwebs, one has the ability to click on what’s called a “link” in order to access a written piece in its entirety in order to judge for oneself whether quotes are taken out of context or skew the the author’s intent. Something CNN, ABC and CBS learned the hard way.
It appears that the ABA is accusing your hero of trying to score political points in a most unseemly and deceptive manner.
He’s not my hero, he’s the President. And you clearly didn’t read the letter, because that’s not what it says. They accused him of nothing in the letter. Your assertions are what is truly deceptive.
The whole purpose of the letter was to rebuke him for attempting to pressure the Supreme Court by politicizing the issue beforea decision had been rendered, your willful blindness notwithstanding.
Obama is picking up where the previous Democrats left off. Remember when Hillary came to Orono to tout health care reform? Democrats will not cease until they have taken over health care. What troubles me is government does not run any business or program well.
LMAO. Ever opportunistic, the GOP is now defending judges. Activist judges sound pretty good now, huh?
The court will do what it is going to do but there is nothing special about the Affordable Care Act. It is one of many laws with mandates. I have had Social Security and Medicare deducted from my pay every year I have worked. If they don’t take enough out, the IRS makes me pay up at the end of the year. That way I am held accountable for funding my own medical care as a senior.
If I am getting this right the republicans are saying people should be able to ride for free and pass their costs on to the rest of us…..The republicans are actually the socialists on this issue. The ACA mandate is really about personal responsibility. Everybody uses health care and the ACA makes everybody have to pay something towards it.
It is comical how the republicans now stand for nothing at all. Every principle they have espoused for fifty years is now changeable. They just want the power, not to take a principled position on anything.