"... that an unelected group of people would somehow overturn a duly constituted and passed law"


The President told the Supreme Court that it would be frustrating Congressional will if it ruled against his Health Care plan. The President, who was once a law professor, advanced not a single legal argument to bolster his exhortation, saying instead that they would be a bunch of “unelected group of people” who will have turned to “judicial activism or a lack of judicial restraint” if they went ahead and struck down


his signature legislative achievement, the healthcare reform act. Obama was speaking at a trilateral event with the Prime Minister of Canada and President of Mexico.

“I am confident 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,” President Obama said at a White House event in the Rose Garden today.

“I just remind conservative commentators that for years we have heard 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 and I am pretty confident that this Court will recognize that and not take that step,” Obama said to the White House press.

Other Democratic Party officials uttered the same warnings earlier, again advancing only political arguments. Senator Richard Blumental, (D) argued that if the Supreme Court failed to uphold Obamacare it would damage its reputation and possibly its legitimacy.

“This court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court, in its credibility and power,” said Senator Richard Blumenthal, a former attorney-general of Connecticut.

“The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.”


Earl Ofari Hutchison of the Huffington Post said a rejection by the court would result in a “colossal disaster for minorities”. He acknowledged that the “biggest gripe, which is the one that the court will latch onto to strike down the law, is that it was a gross infringement on individual liberty. It allegedly whipsawed Americans into buying insurance.” But these considerations of liberty counted less than necessity. Minorities needed health care dollars and that was the most important thing.

These arguments are less important than how the judicial torpedoing of the law will hurt millions of poor, working-class Americans that desperately need health care, but couldn’t get affordable care before the law was passed, and are just as unlikely to get affordable care after it’s struck down. It’s no mystery who among those millions will be hurt the most.

A report by the Commonwealth Fund found that blacks and Hispanics made up nearly half of the estimated 50 million Americans with absolutely no access to affordable or health care. The even starker reality is that the number of blacks without a prayer of obtaining health care at any price has always been wildly disproportionate to that of whites — even poor whites. It has steadily gotten worse over the years


Furthermore, this was the Last Chance Saloon because in the future there might be some other Congress, holding what President Obama called a “strong majority” with other ideas, what with what Ofari called a “public deeply divided on whether the law was ever a good thing or not”, so it’s now or never.

There is some hope that the court’s smack down of the law will ignite a firestorm of protest, and that firestorm will prod Congressional Democrats and the Obama administration to go back to the drawing board and reintroduce a retooled version of the health care reform law. That’s a possibility. But it won’t happen in the middle of a tough presidential election year campaign, with the public deeply divided on whether the law was ever a good thing or not, and with a House still solidly in the sway of the rabid opponents of Obama’s health care reform proposals.

But there is a danger to assuming that party platforms are self-evident and universal truths. Health care systems similar to those which President Obama are establishing are now collapsing in Europe.  Richard Blumenthal’s assertion that nobody would so foolish as to oppose so self-evidently wonderful a program as Obamacare flies in the face of the undeniable fact that the voters ousted the Congress which passed it.  Saying that history is on one’s side is even more dangerous an argument.


If history is on Obama’s side then surely this is not, as Ofari argues, the Last Chance Saloon.  One would think that what Martin Luther King called the “arc of history” would be not be dependent on a thing so contingent as a Nancy Pelosi being Speaker of the House. It is all too easy for politicians to confuse their party platforms with the Will of Destiny. The last time President Obama invoked the “arc of history” was in praising the political upheaval in Egypt. How did that turn out?

The latest reports are that Khairat el-Shater of the Muslim Brotherhood is on track to become the next President of Egypt. That is some arc; and the Egyptian people will be a long time getting out from under it. If Egypt is the measure of the President’s judgment, then he had better let SCOTUS take a shot at it.

The Arc of History

The failure of the President’s Attorney General to come up with a legal argument for Obamacare should not be replaced by an appeal to history or raw political strength. History passes its own judgments in the fullness of time and not usually from a teleprompter in Mexico.

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