I’m in catch-up mode since I didn’t post anything last weekend. I’ll briefly touch on the two topics that have dominated the news recently in this post (two topics that you’re probably sick of). First up is Obamacare, which was argued before the Supreme Court of the United States (SCOTUS). An updated look at the GOP race will follow.
Unsurprisingly, I’m of the position that Obamacare should be struck down in its entirety due to the unconstitutionality of the individual mandate and the inability to separate it from the rest of the bill. I’ve laid this out before and I won’t retread that. Probably the best overviews on Obamacare I’ve seen are courtesy of Thomas Miller at the American Enterprise Institute (AEI) from March and April of 2012. Miller does a great job of laying out the arguments and logic used by both sides. Yes, he’s clearly of the same mindset that I have regarding Obamacare, but his work still does well at playing devil’s advocate.
Trying to handicap SCOTUS is tough because they are, to put it mildly, unpredictable. If I have to guess (which I don’t, but I will because it’s fun), I think we’ll see a decisive ruling that overturns the individual mandate and the entire bill. I’m thinking more than the conventional wisdom of 5-4 with Thomas, Scalia, Roberts, Alito, and Kennedy comprising the five. I’m also thinking we’ll see a lot of opinions by SCOTUS standards, meaning beyond the typical majority and dissenting opinion. I wouldn’t be surprised to see Breyer and/or Ginsburg join the majority of the aforementioned five, but via concurring opinion(s) that kill the mandate, yet uphold the rest of the bill. I can’t realistically see Sotomayor or Kagan striking down the mandate, if only because I somehow doubt Obama would have been foolish enough to pick a justice who would overturn his signature bill. There’s no way that didn’t come up in vetting. Kagan being able to vote in this case is questionable at best and unethical at worst, but I digress.
One last thing I’d like to touch on before switching gears is Barack Obama’s words about the case. It’s one thing for a president to express the opinion that a given law is constitutional and think that it will be upheld by SCOTUS. There’s absolutely nothing wrong with that and I would fully expect a president to make such statements. However, Obama didn’t stop there. Two quotes are very revealing.
“The Supreme Court is the final say on our Constitution and our laws and all of us have to respect that. But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.”
“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.”
Let’s be real here. Whether a law is passed 99-1% or 51-49%, if SCOTUS deems it unconstitutional, it is their job to strike it down. It’s not unprecedented or extraordinary for SCOTUS to do this. Also, the Judicial branch is not and should not be expected to show deference to either the Executive or Legislative branch. This is not the way the Constitution is written. Constitutional law professors like Obama surely must be aware of this. Yes, the Obama administration issued some clarifications to say that they were referring to just commerce. Simply put, this is pure damage control.
It’s also interesting to see Obama talk about judicial restraint versus activism. As I’ve said before, it’s not judicial activism if the court strikes down an unconstitutional law. That’s the court doing its job. The act of upholding an unconstitutional law is not judicial restraint because that is the court failing to do its job. If the Judicial branch rules a law unconstitutional, the Legislative branch can then attempt to rewrite the law to ensure that it becomes constitutional and the Executive branch can sign/veto that law (the Legislative branch can overturn the veto if they want it enough). If the new law is constitutional, it will survive the Judicial branch’s review. If not, repeat. This is how the system works.
To be fair, even if Obama is somehow trying to intimidate SCOTUS, such behavior isn’t unprecedented as the GOP alleges. What Obama’s doing is nothing in comparison to what FDR tried to do. FDR didn’t just try to intimidate the court, but stack it by trying to get the power to appoint a justice for every current justice on the bench over the age of 70. Such a measure would have given him six appointments and would have tilted the court decidedly in his favor. Congress didn’t like this idea and squashed it. Of course, both parties are guilty when it comes to relations with the courts, as George W. Bush did all he could to keep many of the “War on Terror” activities a secret.
And we’re onto the GOP race. There’s not really much to say here and this is likely my last GOP primary update. You probably know that Newt Gingrich scaled back his campaign. You also probably know that Rick Santorum has suspended his campaign. Ron Paul remains in the race, but the odds and numbers for him to win on a first-ballot at the convention are a mathematical longshot at best and impossibility at worst. All of this has more or less cleared the way for Mitt Romney to become the nominee. The GOP can and will begin to refocus themselves on the general election, as Obama and the Democrats have already. We’ll see Romney bring himself back toward more center or center-right positions.
I still registered with the GOP to vote in my state’s primary and I will still vote even though it’s so late in the process and the race is more or less decided. The split schedule nature of the primary races effectively disenfranchises large numbers of voters, particularly in later states. The electoral college’s winner-take-all system has a similar effect on voters in the minority in states where there is a clear majority. This is all another story for another time, of course.
On the bright side, now I can get back into other matters on the blog here (like my next post, which is a book review).
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