(Thomas Mitchell/4TH ST8
“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,” he said. That strong majority was 219-212 vote in a predominantly Democratic House and a no-wiggle-room 60 votes to override a filibuster in the Senate that was obtained by outright bribery and chicanery.
As for unprecedented and extraordinary, I seem to recall a frustrated Obama lecturing member of the court in person in one of his State of the Union addresses over its striking a nearly century-old congressional ban on free speech by corporations and unions. The court has stricken countless laws, as The Wall Street Journal today points out, since Marbury v. Madison in 1803. You’d think a law professor would know that.
He went on to say, “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. And I’m pretty confident that this Court will recognize that and not take that step.”
So, that is why swinging Justice Anthony Kennedy pointedly asked
And why Justice Antonin Scalia asked, “Any self purchasing? Anything I — you know if I’m in any market at all, my failure to purchase something in that market subjects me to regulation.”
Or why Chief Justice John Roberts asked, “So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?”
Perhaps Justice Samuel Alito’s questions about whether people could be forced to buy burial insurance was a tell that he will vote to uphold the law.
Actually, it sounded like Obama was practicing his post court ruling campaign speech in which he will blame a bunch of unelected people for taking away all the goodies in ObamaCare, which he also pointed out. He claimed 2.5 million young people health care who wouldn’t otherwise have it and tens of thousands of adults with preexisting conditions have health care because of this law and 30 million will gain coverage when the law is fully implemented in 2014.
And why are they having to wait till 2014? Oh yes, those imaginary savings could not be conjured unless you load revenues upfront and backload expenses.
Even Obama admitted that without the individual mandate, the whole thing collapses like a house of cards. “And I think it’s important, and I think the American people understand, and the 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,” he said. “So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.”
Justice Kennedy also observed that the ObamaCare fundamentally changes the relationship between the government and its citizens:
“But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
“And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”
Are we citizens or subjects?
I was trying to think of a good analogy to ObamaCare in which Congress could dictate something ridiculous to solve some perceived problem, but could not think of one. It turns out Obama himself came up with one while running against HillaryCare in 2008. Joseph Rago in the WSJ Political Diary reminds us today that Obama said in an interview then:
”She mandates that everybody buy health care. She’d have the government force every individual to buy insurance and I don’t have such a mandate because I don’t think the problem is that people don’t want health insurance, it’s that they can’t afford it. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”
(See videos of Obama Monday and in State of the Union address at 4TH ST8