Supreme Ironies: Obamacare and the Court
When Chief Justice John Roberts and his fellow Supreme Court justices review Obamacare next year, it will be a moment of supreme irony.
The Roberts Court will decide the constitutionality of President Obama’s signature legislation under the Commerce Clause, since the law was cast as a regulation of interstate commerce, although it was actually a massive new government entitlement, using an unprecedented individual mandate to provide insurance companies the funds to administer it. Appellate courts across the nation have struggled with the issue, producing opinions in six different circuits covering a total of 654 pages, using diverse analyses to reach conflicting decisions (and usually split ones), necessitating Supreme Court review.
How should the Justices approach the issue Obamacare presents? What judicial philosophy should they bring to the question? The answer to that question may require the resolution of an issue raised six years ago — in a confirmation proceeding involving a new senator seeking to justify his vote against an indisputably qualified nominee.
The nominee was John Roberts, and the senator was Barack Obama.
Roberts’ qualifications for the Supreme Court were remarkable. He had graduated from Harvard College, summa cum laude, in three years. He graduated from Harvard Law School magna cum laude, serving as managing editor of the Harvard Law Review. He clerked on the Second Circuit Court of Appeals and then for Supreme Court Chief Justice Rehnquist. He served as associate counsel to President Reagan and then as the Principal Deputy Solicitor General of the United States, arguing 29 cases before the Supreme Court. After leaving government, he joined a prestigious Washington law firm, focusing his practice on federal appellate litigation.
In 2003, he was appointed to the D.C. Circuit Court of Appeals (subsequently writing 49 opinions that produced two dissents). During his 2003 confirmation proceeding, 156 prominent members of the D.C. bar — including prominent Democrats such as Lloyd Cutler (White House counsel to Presidents Carter and Clinton), Seth Waxman (Clinton’s Solicitor General), and Walter Dellinger (another Clinton Solicitor General) — submitted a letter stating:
[We are] united in our belief that John Roberts … is one of the very best and most highly respected appellate lawyers in the Nation, with a deserved reputation as a brilliant writer and oral advocate … [with] unquestioned integrity and fair-mindedness — [representing] the best of the bar.
In 2005, Barack Obama voted against Roberts, while acknowledging he was qualified to sit on the Court. In his speech announcing his vote, Obama said Roberts had “the comportment and the temperament that makes for a good judge.” He was “humble, he is personally decent, and he appears to be respectful of different points of view.” He “truly loves the law” and had an “excellent record as an advocate before the Supreme Court.” Obama had been impressed in a personal meeting with him:
[I]t became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence [sic], a certain modesty in reading statues and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system.
But in Obama’s view “the problem” was the remaining five percent of the cases — which Obama thought should ultimately be decided not by the law, but by the heart, because in Obama’s view the law and legal process would only get you so far:
In those [remaining] cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy. In those five percent of hard cases, the constitutional text will not be directly on point. … Legal process alone will not lead you to a rule of decision. [Emphasis added].
Obama made it clear he felt the Commerce Clause was one of the constitutional provisions that lent themselves to decisions based on deepest values, core concerns, broader perspectives, and empathy:
In those circumstances, your decisions about [such issues as] whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce … the critical ingredient is supplied by what is in the judge’s heart. [Emphasis added].
Obama concluded that the deciding factors in voting on the nomination were not Roberts’ qualifications, comportment, temperament, personal decency, love of the law, respect for different points of view, record as an advocate before the Court, and deep respect for the basic precepts that go into deciding the cases. Rather the key was what Obama thought was in Roberts’ heart – his “overarching political philosophy.” Obama said he would thus vote against Roberts, albeit with “considerable reticence” (since his remarks ran 1471 words, “reticence” was probably not the word he was looking for).
Obama’s list of controlling considerations was actually a list of the things a judge should not use in deciding a case. A judge’s deepest values, core concerns, broader perspectives, empathy, and overarching political philosophy have nothing to do with the legal issue presented by a case. A judge owes the litigants and the legal system a duty of excluding those considerations from his decision.
Whichever way he votes, it is unlikely Chief Justice Roberts will be using those standards. The irony is thus that while a majority on the Court probably does not share Obama’s political views (dressed up as deepest values, core concerns, etc.), Obamacare may nevertheless prevail. As the Eleventh Circuit opinion (holding it unconstitutional in an opinion written jointly by Republican and Democratic appointees), the Sixth Circuit decision (holding it constitutional by a 2-1 vote, with the deciding vote provided by a Bush 43 appointee), and the D.C. Circuit decision (holding it constitutional in an opinion written by a Reagan appointee) show, the issue is a constitutional one, not a political one, despite the standards Obama has sought to apply to the Court. And as this debate demonstrates, the issue is a close one.
There is also a political irony whatever way the Court ultimately decides. If it holds Obamacare unconstitutional, Obama’s attempt to “transform” the country will have been repudiated as a matter of constitutional law. But if it holds Obamacare constitutional, Obama’s political peril may be greater: the only recourse for voters — who currently support repeal of Obamacare by a 57-35 percent margin (with 42 percent “strongly” favoring repeal) — will be to change the President (and the majority in the Senate) so they can do so.
To anyone with a lick of sense the mandate is clearly unconstitutional, because if it isn’t the authority granted to congress is nearly limitless. But regardless, has anyone considered seriously the possibility of Obama attempting to get ObamaCare repealed, at least partially, before SCOTUS can rule on it? Wouldn’t there be some political value to him doing so since no matter how SCOTUS rules it hurts him?
How would it hurt him? Just like his fake jobs bill that he knew would never pass, he’s probably hoping the five evil corporatists owned by the Koch brothers who brought you Citizens United will overturn it so he has another issue to say, “I tried to do this for you but the evil, corporatist Republicans wouldn’t let me.” The people who are self-interested or stupid enough to vote for him once will stay self-interested and stupid enough to vote for him again.
I don’t believe that SCOTUS ruling the mandate unconstitutional will help. I don’t see an upwelling of angry support coming out of that. Instead I see independents wondering even more about his competency. However, it certainly is less clear how this affects the political landscape if struck down then if upheld.
There’s an editorial in the NY Times today by a Harvard law professor that essentially makes exactly that argument…no limits. As the California congressman stated a couple of years ago to a friendly audience, “there is no theoretical limit to the power of the federal government”. As a matter of law (based on 200+ years of precedent since the Constitution was drafted), they may actually be right. Sorry – the commerce clause has been stretched to cover virtually everything, and the editorial explains the legal case quite well. Yes, the Constitution is getting close to being legally null and void (since any and all exceptions are allowed). If these people are legally correct..and I’m not sure they’re not (forget whether it’s “good” or not for a moment), then the only thing that controls the exercise of that government power is “democracy”, ie; our ability to vote. Yes, this is 180 degrees different than the spirit of the Constitution which was concerned…if not obsessed…with limiting federal powers (and not allowing simple majority whims to drive everything). I’m not a lawyer but I’m afraid this may actually be the constitutional juncture we’ve arrived at. Speaking of democracy though, I’m pretty certain this idea is something most of us didn’t/wouldn’t sign on for. It may take a Constitutional convention though to re-establish Constitutional principles.
I find it interesting that we’ve seen movements for other constitutional amendments like Term Limits, etc, but I’m unaware of a push by any conservative groups for an amendment to redefine the commerce clause. Given that we’ve taken a large percentage of state houses, now would be the time to begin such a process. It wouldn’t pass thru the current Senate, but could become another issue that could help bring about a Republican Senate in 2012.
The Affordable Care Act will be ruled constitutional. If there is a swing vote, Kennedy will be it. Then what are all you armchair political experts with your crystal ball going to do then? I anticipate a lot of teeth gnashing and hang wringing.
Over one hundred years ago Woodrow Wilson, while he was a professor of political science and before he became president, argued our constitution was getting in the way of government doing what was necessary for the common good. He was in favor of a parliamentary system, not a consitutional system of checks on federal power. A parliamentary system, the British parliament for example, would have no checks on its power to enact legislation.
If our supreme court holds obamacare to be constitutional, we will no longer have constitutional protection against the exercise of federal power over citizens and states. If our congress can require citizens to purchase health insurance, it can require us to do anything. It is all up to the congress.
If obamacare survives this challenge, our country will still look like America but it will no longer be America.
The progressive dream of unlimited federal power will be realized.
Woodrow Wilson is probably the most consistently overrated president. He was especially admired by the educational system when I was growing up. I think I heard far more about the failed League of Nations in class than I did about any of the rest of WWI. Teachers also kind of glossed over the whole income tax thing.
He always made it onto at least the top ten presidents list, if not the top five. As I got older, I started to wonder just what the hell he did that was so great. Now I clearly see that if you’re a socialist, he was a prophet. And in retrospect, I recognize how socialistic the educational system was even back then. Personally, as a president, I’d rank him somewhere above Jimmy Carter but below Rutherford Hayes.
“The progressive dream of unlimited federal power will be realized.”
And yet I wonder if the flaming left has entertained the notion of what that means with a republican majority in power.
No they haven’t. Their mental illness cannot allow them to think of such a happenstance. It’s impossible in their minds and they will do anything, say anything and cheat anywhere to make sure it doesn’t come to pass, therefore it won’t.
Rick, you noted “sic” on Obama’s use of “precedence” but left “reading statues” without comment. Oh please tell me he really wrote about reading statues rather than statutes.
Alma — thank you for catching that; it’s “statutes” at the link, so this is just my typo.
Mr. President sees his teleprompters as works of art, much like abstract human sculptures. Once in a while, they even take on the from of Burning Bush.
Mr. President sees his teleprompters as works of art, much like abstract human sculptures. Once in a while, they even take on the from of Burning Bush. And tablets with statutes do come forth from time to time…
Our only hope is that SCOTUS declares it unconstitutional, which even to a layman, on the face of it it absolutely is. Even if SCOAMF is removed from office and we gain a majority in the senate, it will require the political will to repeal this monstrosity; and from what I have seen of the Republicans in Congress, that will does not exist.
Why would a group of people who wield power vote to reduce it significantly? They won’t.
If this is not struck down, we are finished as a nation and as a people. Ball game.
Followed the link, went to the site, read through a few speeches and crossed this little gem –
“At this point, the well-connected CEOs and hired guns … who’ve helped write our laws have gotten what they paid for. They got all the tax breaks and loopholes and access they could ever want. But outside this city, the people who can’t afford the high-priced lobbyists and don’t want to break the law are wondering, ‘When is it our turn? When will someone in Washington stand up for me?’”
ObamaCare, anyone? Public employee unions, federally-directed mortgage lending mismanagement, “millions of green jobs,” anyone?
The quote is from his speech titled “Barack Obama – Remarks: Honest Leadership and Open Government” (I dropped the words “on K Street” at the ellipsis.)
This clown HAS to go!
P.S. – Alma, “statutes” is spelled correctly at the linked site.
Wow. Form.
Ah yes, Empathy, such a terrible thing to waste.
that is a long winded way to say obama voted against Roberts because Roberts is not a progressive/leftist/marxist
More concrete evidence and justification for my constant, continuing claim that he is ignorant.
If he REALLY was engaged as a “student” in Law, he would absolutely know how to spell p-r-e-c-e-d-e-n-t-s. This word would have to be encountered on a daily basis, IF he were present in classes. In Law, it is a major fundamental.
I’m sure his grades were appalling. Good reason to hide them.
His attendance records are probably as full of holes as his spoken word.
No wonder OWS protesters think they are due so much. Look at what has been promoted as intelligence.
What about the use of “reticence” when Obama really meant “reluctance”? That goes back to probably 8th grade, when “reticent” was a new vocabulary word that many people for some reason substitute for the previously-learned “reluctant”.
Not to mention that he wasn’t all that reticent.
You guys must not have taken a college course in the last 20 years or so. If you pay and show up ocassionally, you get a C. If you pay and show up fairly regularly, you get a B. If you pay, show up fairly regularly and actually do some of the work, you get an A.
I was in exile a couple of years back in the late ’90s, so I took some college courses. I learned that all the bad things I’d been saying about public education were totally wrong; it was far, far worse than I ever imagined. One can quite easily get a college degree and remain functionally illiterate.
Well, let’s look at the conservatives or moderates on the Supremes today. Clarence Thomas was dragged through the mud, with his “electronic lynching”.
Alito’s wife was made to cry. Barack voted no to confirm Roberts. That leaves Scalia and Kennedy who haven’t been targeted by the Dems. Maybe their nastiness will come back to bite them. I can always hope.
Very interesting article. A most informative look at our judicial (and political) system. That is, how it is *supposed* to work.
Obama’s problem with the law is the law.
Never forget the State of the Union Address where the POTUS dressed down the Supreme court before the entire nation.
I’m confident they haven’t.
All this bring us to the root cause: the commerce clause. I believe that should be repealed or at least watering down, but I know it’s a long road to walk. I’d like to see a debate about this. Why the heck would any freedom defender want a clause like that?
If I want to trade candies for gold bars, why should anybody want to intervene and regulate?
And don’t tell me Government should guarantee the safety, blah blah blah, because that’s exactly the philosophical root of every tyranny.
I think the proper role of the government is to act as an arbiter when people making their own contracts come to disagree: if I the get gold bars but refuse to give the candies, I should be held accountable. But this is not exactly “regulate commerce”, it’s more like settling disputes in a conflict, emerging in the context of a free and voluntary contract between citizens. Also: as long as it is free (voluntary) Government has no business regulating that.
I agree with your frustrated sentiments, but completely disagree about the solution. The problem is not the Commerce Clause; the problem is that the sovereign of this nation, We the People, and the ministers we have hired to run the nation, are in willful ignorant denial about the plain text meaning of that clause, and our entire foundational Law, the Constitution. It is abundantly plain to anyone with common sense who is not in denial (e.g., is not a ‘progressive’, among others) that the Commerce Clause can not be legitimately interpreted to mean that Congress can legislate anything anywhere just because it might possibly somehow affect something that’s traded across state lines. Yet many persist in claiming it means just that. If they’re willing to distort the plain text now, they’ll be willing to distort the plain text anytime about anything. The problem is not the Law itself, the problem is in the hearts of those who claim to be intrepreting it. And the original problem is with the sovereign, whose responsibility it was and is to ensure that the legislators and executives we hire follow the Law. But We the People don’t care.
This is the same reason why having a Constitutional amendment defining marriage won’t help. It ought to be abundantly clear that marriage is a particular thing, the sacred union of a man and a woman. Everyone who has wit enough to be held responsible for their actions knows this, it’s just that some are in denial about it. So if such an amendment is passed, I predict it will be no time at all before two men present themselves before a judge saying they want to be ‘married’. The judge will sorrowfully declare that he can’t marry them, since those eeevil conservatives passed the DOMA amendment to the Constitution (like we’d really be successful in doing that, but never mind) saying that marriage is between a man and a woman. One of the men then pipes up: “Well, for the purposes of this marriage I’M the woman!” The judge replies: “Good enough for me!” and gleefully performs the ceremony.
Denial. It’s a great thing when it’s a river in Egypt. This does not end well.
Of course, you’re correct about the plain meaning of the commerce clause, but in the real legal world, there’s precedent almost always wins. To break the precedents with the CC, we need an amendment to limit it.
Nah. We just need a sovereign who will appoint ministers who will appoint justices who will be willing to acknowledge that the precedent in question was grossly wrong. It’s been done. Let’s face it: if We the People ever get enough out of denial to pass such an amendment, we’d be wise enough to elect the right legislators and executives so it wouldn’t be necessary.
You say in the real legal world, and you’re right; but in the real political world, about the only hope we have of any semblance of Constitutional sanity returning will be if we get at least one more SCOTUS justice in the Thomas mode on the bench, and at least 5 of all of them gather enough Constitutional cojones to declare broad swathes of current Fed law unConstitutional. Grossly unlikely, I know, but probably more likely than We the People actually insisting on our legislators following the Constitution strictly.
“change the President (and the majority in the Senate) ” Yeah, a little extra there to make sure Obamacare is repealed. But that’s just me being “reticence”.
“But if it holds Obamacare constitutional, Obama’s political peril may be greater: the only recourse for voters — who currently support repeal of Obamacare by a 57-35 percent margin (with 42 percent “strongly” favoring repeal) — will be to change the President (and the majority in the Senate) so they can do so.”
Exactly right. Even if Obama wins (Obamacare is ruled constitutional), he loses because 57% of the people will go to the polls with one thought in mind…elect Republicans who will repeal Obamacare. Talk about “motivating the electorate”!
I recall Senator Obama’s 2006 “no” vote on raising the debt ceiling, and his sanctimonious words that accompanied his vote.
“The fact that we are here today to debate raising America’s debt limit is a sign of leadership failure. It is a sign that the U.S. Government can’t pay its own bills. It is a sign that we now depend on ongoing financial assistance from foreign countries to finance our Government’s reckless fiscal policies. … Increasing America’s debt weakens us domestically and internationally. Leadership means that ‘the buck stops here. Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership.” Americans deserve better.”
Earlier this year, Obama made not raising the debt ceiling into some kind of subversive act.
Obama’s statements on gun control are similarly afflicted, but, given his apparent hope that Fast and Furious would ultimately help tank the 2nd amendment, you know where this guy stands in his heart of hearts, no matter what words he utters.
And people say he’s not a flip flopper, that his stands aren’t simply a function of whatever he construes to his benefit in the moment.
Voting against qualified and distinguished John Roberts and appointing the Wise Latina and the woman who helped craft Obamacare and its legal rationales, Elena Kagan, tell a story in and of themselves.
There is no logical way the Supreme Court can interpret the Commerce Clause as allowing Congress to require the purchase of a service or a product.
obama doesn’t flip flop as much as he changes his opinion depending on what the damage will be.
…always opting for the most damage
Ok, Obama…I’m your Huckleberry.
I am going to adopt EVERY aspect of your “governance”, the manner in which you and your stooges, lackeys, minions and especially your propaganda machine have ruled this land of ours.
I hereby declare you correct in all respects.
1)After Nov. 2012, our attitude will be “we won”, “elections have consequences” and we are going to appoint judges SOLELY on the basis of “what is in their hearts” on those 5% of cases. Solely.
2)EVERY piece of legislation is going to be drafted in secret, unavailable and unread by Congress, passed in reconciliation and jammed down the throats of ever small c communist and anarchist I can find.
3)We are going to build a press ONLY with those outlets who do our bidding, remain vigilant in covering up our scandals and constantly attacking our “enemies” as you called us on Spanish radio.
4)We are going to target EVERY news outlet for harassment and destruction, impose a Fairness Fiat on them and defund every leftist outlet.
5)We are going to take unions in every bankruptcy case and move them to the BACK of the line.
6)We are going to call every citizen of leftist states, especially those on the coasts that have muffed their economies into bankrupt status “muffdivers”, clingy whiners, and any one of them that dares ask our candidates a question we don’t like…we are going to investigate them personally.
7)We are going to have a shadow party that buys up all the media sites we can and we are going to launch an offensive every time an anarchist or overthrow word is mentioned.
8)We are going to replace czars and czarinas with patriots and minutemen. Their sole job is to track down every planted leftist in any department in our government and shrink the size of that government by one…at a time.
9)We are going to bring back trials for treason. We are going to go to our judges who have the “right 5% stuff”…and we are going to hang traitors in the public squares.
10)We are going to sue EVERY official who conspired to destroy our borders and give the money to the states who had to fight our own government to protect themselves.
11)We are going to appoint “proctors without borders” to go from state to state to sit in on high school and university classes to see if indoctrination in treason is being paid for by federal taxpayer dollars.
12)We are going to prosecute and sentence serial voter fraud, voter intimidation, voter harassment offenders.
13)We are going to announce that Israel can keep any borders she pleases and that we will not tolerate dealing with liars from the other side…every day.
We are going to do all this and more. Modeled after the government, media, academia and Hollywood you have established to attempt the overthrow of free market capitalism, the slandering of America and her allies, especially Israel.
And, we are going to go around apologizing to our allies, our states, our military…for your existence.
You showed us well. And, we have learned.
And yummy pie too!
The first thought that came to mind was out of all the glowing compliments for Roberts in so many ways, “95%” wasn’t good enough. Rather he would later nominate two people who he feels he knows what’s in their hearts and is nearly certain that what is in their hearts will comprise 95% of their decisions.
Then I read and reread Obama’s remark’s and the second thought that popped in my head was – am I the only one here that doesn’t think he wrote those remarks? I’ve heard the guy speak and answer off-the-cuff too many times (who can ever escape his self-important hogging of the conversation?) and he just ain’t that deep.
No, you’re not the only one who suspected someone else wrote that speech, and that it was probably delivered via teleprompter.
Bingo, J Milam….I was thinking exactly the same thing. I wonder who his ghost writer was in this case?
The Constitution was written so that the average, educated citizen at the time could understand it. It is not written in loathsome legalese designed to confuse the average reader or to be purposely vague. The purpose of the Commerce Clause is plain enough for a grade schooler to understand. It is well past time for the courts to stop expanding the authority of the federal government and reducing the sovereignty of the people via loose interpretations of the CC. What we have today in DC would have the Founders talking of revolution.
The Left seeks to enslave the productive to the unproductive via wealth transfers and Obamacare is just another wealth transfer scheme. It’s other nefarious purpose is to force an addiction to more government and guarantee a permanent class of overseers to “guide” we commoners.
It is a cliche, but The Founders would be shooting by now.
Is the USA still a democracy?
The corporate-political-entertainment-journalist complex is immensely influential/propagandizing. Why was the XL pipeline killed? I want cheap gas. Voting is sometimes a sham. The dead vote. Military ballots are tossed. Kids who can’t drink a beer can be MTV’d into voting for Snookie. The winning and losing candidates all end up wealthy. Everyone gets paid as the debt piles up and up. Fools like me are often more concerned with pro sports. True religions are mocked. We’re instructed that our heritage values are for losers. Enemies are actively plotting our demise. Technology often enslaves more than it emancipates. Sometimes, it seems there are hidden rulers who have us entrapped in a matrix. And all our arguments/frustrations are grist for their folly.
“Is the USA still a democracy?”
Cyriot, I wish I knew the answer to your question but here is a partial: the members of Congress can use insider trading to help out their incomes. I bet most are doing it and it is legal.
The nation is getting closer and closer to a democracy every day, alas. It didn’t USE to be a democracy, that wicked and evil form of gov’t that the Founders decried: it used to be a Constitutional Republic. But the wicked and lazy sovereign of the nation, We the People, long ago decided that we would ignore and deny our own foundational Law.
Repeat after me: “And to the REPUBLIC, for which it stands…” We’re a Republic, not a democracy! Or, as Franklin is reported to have said one day, when leaving the Constitutional Convention, and a woman asked him, “So, Dr Franklin, what kind of gov’t are we going to have?”, he replied, “A republic, if you can keep it.” And I don’t think he meant ‘if you can keep the British from re-conquering the colonies’. I think he meant just what we’re now seeing: the devolution of our Constitutional Republic into a democracy: rule of men, not rule of law.
Didn’t Uhbama graduate SCL from Harvard as well? Oh, that’s right. Supposedly he had though his grades are for his eyes only for he stated his admittance through his last 2 schools may have been due to AA. What a guy!
Dollars to donuts Uhbama didn’t even write his ‘nay’ letter/speech. Dude has less depth than an empty kiddie pool.
A 1-on-1 discussion with the CiC has to be excruciating.
Congress Wants to Censor the Internet. Tell Them No. November 16, 2011 – by Donny Shaw” http://www.opencongress.org/articles/view/2430-Co…
“If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.”
George Washington
its ridiculous that this could be anything but a nine to nothing vote. Its THAT obvious that Obamacare BLATANTLY violates the constitution. . .
Frankly, I’d rather they didn’t bring ANY “philosophy” to the question. I’d rather they just decide cases based on the plain intent of the law.
I know – ain’t gonna happen.
Core concerns, core values, what is in your heart~~ code words for “It is not fair that anyone has more money than I do or is liked more than I am, and I will destroy you if you don’t see it my way!”
Dear Author
“under the Commerce Clause”? Don’t you mean the Interestate Commerce Clause? I love how creeping liberalism affects the vocabulary of those who think they are conservative. They don’t want the word interestate to be in the clause and they have you leaving it out.