Jacob Sklar
The Supreme Court recently heard oral arguments on the subject of the constitutionality of President Obama’s signature legislative achievement, Obamacare. The course of the arguments made it clear that the Court’s four conservative justices, as well as the moderate Justice Kennedy, were highly skeptical of the law’s constitutionality. This raised the possibility that the Court would strike down all or part of Obamacare, causing President Obama to weigh in on the case. When questioned by a reporter, the President stated that he was “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.” That President Obama would make such an obviously inaccurate statement is truly amazing, especially considering that he once taught constitutional law at the University of Chicago Law School. The Supreme Court has long enjoyed and exercised the power to overturn acts of Congress, including those passed by much stronger majorities than Obamacare, which cleared the House by a vote 219-212. In defending President Obama’s statement, White House Press Secretary Jay Carney claimed that “the President was not clearly understood by some people because he is a law professor, he spoke in shorthand.” A far more likely explanation is that because he is a politician, President Obama was trying to twist the truth for political reasons.
In his comments on the Obamacare case, the President also argued that the Court would be engaging in judicial activism if it struck down the law. This argument is being taken much more seriously, but it too does not hold water. Judicial activism can be defined as members of the judiciary ruling on the basis of their own personal or political beliefs, rather than on the basis of law (e.g. Roe v. Wade). While it is impossible to know what is going on inside the minds of the Supreme Court’s justices, history indicates that Justice Kennedy and the Court’s conservative wing may rule against Obamacare simply on the basis that they believe it to be unconstitutional.
The legal basis for the challenge to Obamacare is that its provision requiring all Americans to purchase health insurance, known as the individual mandate, is beyond the power of Congress to enact. The Constitution grants Congress only specifically enumerated powers, with all other powers being left to the states or to the people. Obamacare’s supporters argue that the individual mandate is within Congress’s power under the Constitution’s commerce clause, which grants Congress the power to regulate interstate commerce.
The evidence against President Obama’s assertion that the Court would be engaging in judicial activism if they were to strike down Obamacare is the fact that Justice Kennedy and the Court’s conservative wing have believed in a narrow interpretation of Congress’s power under the commerce clause since before anyone had heard of Barack Obama. There have been two cases in recent history in which the Court has struck down a law for being outside of Congress’s power under the commerce clause: a 1995 case invalidating the Gun-Free School Zones Act, and a 2000 case striking down parts of the Violence Against Women Act. Neither law was politicized, and in each case the vote was 5-4 with Justice Kennedy and the Court’s four conservative justices in the majority. If the outcome in the Obamacare case is similar, don’t assume that it’s the result of anything other than the justices’ interpretations of the commerce clause.
Jacob Sklar is a contributor to the Voice and can be reached for comment at JSklar12@wooster.edu