“…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.”
There would be nothing “unprecedented” or “extraordinary” if the Supreme Court were to strike down President Obama’s health law. That’s been the central role of the Supreme Court for 209 years: determining the constitutionality of laws.
Nor would it qualify as what conservatives call “judicial activism.” That concept, much hated on the right, usually involves courts making new rules, not invalidating existing ones.
But President Obama, in the midst of a grueling re-election slog, has set out to make the Supreme Court one of his foils for the fall campaign. As he has done before with the Republicans in Congress, oil companies and the wealthy, the president is casting himself and his fellow citizens as victims of those justices unprincipled or unpatriotic enough to oppose his policies.
The high court last week rendered its decision on the fate of Obama’s health law following three days of arguments in which the administration’s central claim – that the power to require all Americans to purchase private health insurance or be enrolled in a government program was simply a regulation of commerce – got a very cold reception.
But in keeping with court tradition, we won’t learn the justices’ decision until June, when it is released along with the other cases considered in the current term. But given the questioning, Obama Democrats are preparing for some unhappy political contingencies.
If the justices decide that Obama’s mandatory insurance provision is unconstitutional but leave the rest of the law standing, it would be a political disaster for the president. Aside from the sting of defeat concerning an already unpopular law, Obama would be forced to propose a replacement for the mandate. The revenues for insurance companies from the mandate subsidize the new health insurance entitlement program at the heart of the president’s law.
Obama would face tremendous pressure from the left to again embrace the idea of a new, taxpayer-funded, insurance entitlement program for all Americans. But with Democrats unwilling to impose the necessary taxes to finance such a program when their party was at a generational peak of power in Congress, it seems unlikely that there would be much support for them now.
The president spent half of his productive time in office fighting with his own party over the law. He surely does not want to spend half of his re-election campaign re-litigating the most controversial provisions of it. This truly has become the law that swallowed a presidency.
So, Obama issued what sounded like a warning shot to the justices. But the president knows the case has already been decided, so the tough talk about the court and his stern warnings to its members is part of his re-election play. His backers have already been laying the groundwork for discrediting the court. Now the president has added his voice to the chorus of advance denunciation.
The former attorney, though, added his own legal opinion, saying that the court could not eliminate the mandatory insurance provision without ruining the rest of the law. It is surely no coincidence that the president opted to inveigh specifically against the one decision that would be the most damaging to him politically – the end of the mandate but the retention of the rest of the law.
This is dangerous ground for the president. His predecessors, even Franklin Roosevelt when much of his New Deal was tossed out by the high court, have mostly resisted the temptation to publicly pressure the court or to challenge its legitimacy.
Remember, the Framers were worried about “the feebleness” of the judiciary, which is why federal judges have lifetime appointments. Without the means to generate revenue or enforce their decisions, the courts depend on the other two branches for their existence. The persistent worry has been that the high court would become the handmaiden to the executive branch, giving the president effectively unlimited powers.
For the powerful executive to menace the feeble judiciary has always been considered unseemly. Before a decision is reached and then after it is rendered, presidents usually defer their judgment and then vow to “respect the decision.”
Andrew Jackson famously (and supposedly) said of a court decision in a case involving tribal sovereignty for American Indians: "John Marshall has made his decision; now let him enforce it!" But that was not in a Rose Garden press conference with the heads of foreign nations present. In fact, Jackson was talking about a conflict between the state of Georgia and the court, not his own exercise of power.
In the most contentious case in modern political history, the 2001 decision in Bush v. Gore, the parties opted not to game or pressure the court. The sitting president, whose vice president was one of the litigants, did not seek to sway the court and abided by its decision afterward. Bill Clinton would, post-presidency, often denounce the decision, calling it “reprehensible.” But at the time, he didn’t dare pressure the court.
Given the fact that the decision has already been rendered, Obama is surely making his threat mostly for political purposes – to frame his own defense on the campaign trail.
But, the president pretty clearly has disdain for the Roberts Court. Not only did Obama take the totally unprecedented step of scolding the justices in person during his 2010 State of the Union Address for their decision in a campaign financing case, but made their decision a central theme in his unsuccessful campaign to retain Democratic control of Congress in 2010.
But even given that history of applying political pressure to the court, Obama was clearly worried Monday about undertaking an effort to de-legitimize a branch of government. So Obama laid off some of the action on the political right, suggesting he was doing nothing more than “conservative commentators” who denounce judicial activism.
No offense to Charles Krauthammer and George Will, but there is something different when the nation’s chief magistrate pressures the justices in real time than when pundits offer erudite musings mid panel. Republican presidents have offered complaints about judicial activism, but not to apply political pressure on a court ahead of decision being circulated.
But, even holding Obama to the standard he has set for himself in his Rose Garden remarks, that of commentator, the “activism” claim misses the mark.
To conservatives, judicial activism is best embodied by the 1973 Roe v. Wade decision that barred states from imposing restrictions on elective abortions within the first 24 weeks of a child’s gestation. The court didn’t just rule the Texas law in question to be unconstitutional, but discovered a “penumbra” within the 14th Amendment, which granted full citizenship to former slaves. Justices said equal treatment for women under the constitution allowed for abortion on demand within the first six months.
The court’s decision would not have been “activism” under the common understanding of the term if it had simply struck down the Texas law. The activism, in the eyes of conservatives, was to pioneer a new right to abortion, an act dissenting Justice Byron White called an “extravagant exercise of the power of judicial review.”
Obama’s claim of a “lack of judicial restraint” would be closer to the beam. He is saying that the court should abide by the will of the 111th Congress and himself, since they were elected. (Though his definition of a “strong” majority is a stretch: Seven votes in the house and the use of a procedural end-around in the Senate to avoid the 60-vote threshold).
This call for restraint is a common legal argument that suggests courts should err on the side of supporting the actions of elected officials. But that is not the same thing as the conservative definition of activism. By twinning them, though, Obama and his backers seek to expand the understanding of the term “activist” as not just one who expands the law, but one who restricts it.
Some Republicans, most notably Newt Gingrich, have talked about igniting a war between the other two branches and the judiciary in which the power of courts is constrained. Gingrich talks about abolishing court circuits that render unpopular decisions and other penalties that the legislative and executive branches could impose. He and others seek to redefine the relationship between the branches that has existed since 1803 when Marshall established the power of the judiciary to review and pass judgment on laws. When Obama belittles the justices as “unelected” he is tapping into this vein.
That’s not the same, though, as activism. Most conservatives would be content if courts would keep their focus on deciding cases and stay out of the business of legislating from the bench. But by conflating the terms and saying that he should have the same right to comment on the courts as Messrs. Krauthammer and Will, Obama hopes to reduce the outcry over what is surely a watershed moment in the relationship between the presidency and the courts.
Chris Stirewalt joined Fox News Channel (FNC) in July of 2010 and serves as politics editor based in Washington, D.C. Additionally, he authors the daily Fox News Halftime Report political news note and co-hosts the hit podcast, Perino & Stirewalt: I'll Tell You What. He also is the host of Power Play, a feature video series on FoxNews.com. Stirewalt makes frequent appearances on network programs, including America’s Newsroom, Special Report with Bret Baier and Fox News Sunday with Chris Wallace. He also provides expert political analysis for FNC’s coverage of state, congressional and presidential elections.