In his diatribe against the Supreme Court over its potential (not realized) to overturn the Patient Protection and Affordable Care Act, President Obama is not demonstrating a breathtaking ignorance of our Constitution or of the Federal Courts’ power of review of Congressional legislation. Instead, he’s just beating an old familiar drum: any failure is somebody else’s fault.
In “framing the court as a potential villain that substitutes its judgment for that of elected legislators,” he’s just setting up the next set of villains in his serial pulp novel, I Didn’t Do It.
Mr. Obama ticked off a string of popular benefits that would disappear if the law is shot down….
Thus, Obama cynically ignores the fact that, were they good ideas, they could have been enacted, after public debate rather than locked door deals, through constitutional legislation. Or he could have let a free market agree that they’re good ideas and generate a (potentially large) niche for them.
But Mr. Obama…said he was confident the high court would not [strike down PPACA], partly because conservatives—who are in the majority on the court—have long argued against what some refer to as legislating from the bench.
He, just as cynically, conflates upholding the Constitution as judicial activism. Also,
He said that without the mandate, it would be impossible to require insurance companies to cover everybody, including those with pre-existing conditions, at a reasonable price.
He ignores the fact that it’s impossible to require this at any price. A free market, however, would allow such coverages at costs commensurate with the risks being transferred.
President Obama, through his Press Secretary Jay Carney, even argues with a straight face that for the Court to overturn PPACA would be to undo 80 years of precedent vis-à-vis the Commerce Clause. This disingenuously ignores recent Commerce Clause overturnings that others have described. Even more disingenuously, it ignores the fact that those “80 years of precedent” began with Supreme Court’s overturning of 100+ years of Commerce Clause precedent in Jones & Laughlin and Wickard—the former by a Court thoroughly intimidated by FDR’s court packing effort, and the latter carried out by an FDR-packed Court, a Court in which 8 of the 9 Justices were FDR appointees.
And it puts Obama in the strange position of implying that Brown was wrong because it overturned 80 years of precedent flowing from Plessy.
It’s not my fault. The devil made me do it.