In case you’ve been shackled to a drainpipe for the past couple of weeks, there’s been an escalating tension in the air over the fate of Obamacare, now that the Supreme Court has heard the case.
President Obama, warning the other day that he would view a negative ruling by the Court as “judicial activism”, unburdened himself of a real whopper:
“Ultimately I am 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,” Mr. Obama said in the Rose Garden appearance.
This is absurd, of course; ruling on the Constitutionality of acts of Congress is what the Court does, and has been doing since Marbury v. Madison. One can only assume that Mr. Obama,. with his degree from Harvard Law, does know that — so one can only assume that he simply doesn’t care, and is trying to paint the impending smackdown he is likely to get from SCOTUS as motivated by right-wing politics, rather than Constitutional jurispridence. All of a sudden he’s worried that he’s actually going to lose, and is laying the groundwork to turn the visceral anger of his base against the Court’s conservative Justices.
It’s working already. I have a student, a lawyer in his fifties, who in class last night complained to me that anyone could see that it was all just political: because after all, the ones who were seen as most likely to rule against the individual mandate — Roberts, Alito, Scalia, and Thomas — are all Republicans.
This is poorly reasoned — confusing correlation with causation — but we’ll be hearing a lot more of it, I think.
Anyway, as I said, tensions are high, and getting higher. Here we are in an election year, with the country breaking apart over irreconcilable, axiomatic disagreements about what America is and what governments are for, and the President’s signature accomplishment — bitterly fought and narrowly won on a blood-soaked political battlefield — is in real danger of being nullified. So when Mr. Obama fired off his warning shot across the Judiciary’s bow on Monday, it provoked a warlike response from a three-judge panel on the Fifth Circuit Court of Appeals, ordering the DOJ to report back by Thursday on whether the President actually believes that the Supreme Court has the power to strike down unconstitutional laws.
For the appeals court to make such a flamboyantly provocative gesture shows how high the temperature’s getting here. There’s often bad blood between the branches, but the smoldering feud between this administration and the conservative Justices is about as openly hostile as I’ve ever seen. (Remember the SOTU after the Citizens United ruling?)
Such high drama! and mighty entertaining — but the stakes are even higher.