New Obama Has It Backward; Striking Down Obamacare Would Protect Our Republic

April 5, 2012

Is President Obama such a die-hard leftist ideologue that he can’t get it right on judicial review, despite having time to reflect and regroup after his impertinent comments designed to intimidate the court?

As everyone knows, Obama said Monday, “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.” That, he said, would be “judicial activism.”

For a man who promised to upgrade the dignity of the office and held himself out as a model of bipartisanship, this president manages to insinuate himself into every imaginable issue and incident on which he has a strong opinion, from the Cambridge police to Trayvon Martin to Las Vegas tourism. If he wants his administration to engage in Chicago-style political street fighting, couldn’t he at least delegate the task to one of his surrogates?

What business does he have calling out the Supreme Court while a major case is pending before it (the Affordable Care Act) and issuing an implied threat that the justices had better not defy him?

Please don’t protest that I’m making an unwarranted inference. It’s not as if he hasn’t done something like this before.

Do you remember when he looked down on members of the Supreme Court at a joint session of Congress to rebuke and ridicule them for their decision in the Citizens United case to lift limits on corporate spending on campaigns? He said, “The Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”

In his weekly radio address, he said that the court “handed a huge victory to the special interests and their lobbyists” and that “this ruling strikes at our democracy itself.”

This public assault was so outrageous that the normally unflappable Chief Justice John Roberts told University of Alabama law students, “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think, is very troubling.”

Obama has received similar blowback from his remarks on the Obamacare case, though not directly from any member of the court. While acknowledging the court’s power to declare laws unconstitutional in theory, he remains defiant about the impropriety of the court’s doing so in this case.

It seems that when the court overturns a law liberals like or upholds a law they oppose — irrespective of whether it conforms to the Constitution — they cry judicial activism.

Thus, Obama and liberals go berserk when the court, exercising its constitutional prerogative to pass on the constitutionality of laws, properly strikes down laws that are incompatible with our fundamental law — when liberals support those laws. But that’s not judicial activism; it’s upholding the integrity of our structure of representative government.

Judicial activism is when courts uphold laws inconsistent with the Constitution or overturn laws that are consistent with it — mostly to achieve a certain policy result. It’s when courts act as super-legislatures, making up their own laws or substituting their political judgment for that of the democratically elected legislative branch in cases in which neither statutory nor constitutional interpretation warrants it.

Judicial activism is objectionable because it strikes at the very foundation of our government, which is not a “democracy” as Obama said, but a constitutional republic. If the court upholds or rejects laws based on nothing but its own political preferences, we have a government not of laws, but of nine robed men.

If the Supreme Court were to overturn Obamacare, it would not be engaging in judicial activism; it would be reining in a renegade president and Congress from their lawless power grab and reinforcing the integrity of the Constitution — and thus our very republican form of government and its attendant liberties.

If the court were to uphold Obamacare, it would be thrusting another long knife in our ailing Constitution and, once again, violating the Constitution’s scheme of limited government, which grants expressly enumerated powers to the legislative branch — which do not include, even when coupled with the necessary and proper clause, the right to force people to purchase health insurance.

The irony is that ordinarily, liberals don’t have any problem with true judicial activism; they’ve long been saying that the Constitution is a living and breathing document and that the court must often rewrite it to keep it in step with our “enlightened” modernity.

If President Obama wants to prevent assaults on what he inaccurately calls our “democracy,” he should refrain from efforts to intimidate the court.