The former lecturer on constitutional law did not cite any constitutional argument for his prediction, which came Monday in a public appearance at the White House with the prime minister of Canada and the president of Mexico.
Instead, Obama urged the judges to defer to the expertise of professional lawyers, to defer to elected legislators in Congress and to avert the suffering of people now without government-mandated health insurance.
Obama’s law was given a critical review by the nine-member court last week, and many legal conservative and progressive experts concluded that the court’s swing-voter, Justice Anthony Kennedy, leaned against the law.
If the court approves the law, it would give the federal government the authority to punish people who don’t buy health care insurance designed by the federal government.
The law is popular among progressives and among academic lawyers, partly because it would greatly expand the power of the state.
Conservative and libertarian advocates of constitutional law say the Constitution’s text bars the federal government from such a far-reaching intrusion into peoples’ lives. (RELATED: Full coverage of Obamacare)
The law is valid because “that’s the opinion of a whole lot of constitutional lawyers professors, academics and judges and lawyers who have examined this law,” Obama added. Those experts, he said, include at least two conservative judges.
Obama did not cite any text from the Constitution, although he was employed by the University of Chicago in the 1990s to teach constitutional law.
The nine judges also should approve the law because overturning the law would constitute “judicial activism,” Obama said.
“I’m pretty confident that this court will recognize that and not take that step,” he said.
Constitutional conservatives argue that the courts’ job is to enforce the Constitution’s text, regardless of whether a law is clever, noble, popular or supported by a majority of voters or legislators. For conservatives, “judicial activism” happens when judges use their power to establish their preferences as mandates or as freedoms, even when there is nothing in the text to support their claim.
In contrast, progressives downplay the Constitution’s text, and argue the Constitution is a “living document” that should be periodically adjusted by expert judges amid changing times.
Obama also made an emotional pitch to the judges.
“This is not an abstract argument,” he said. “People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of pre-existing conditions.”
Millions of “Americans all across the country have greater rights and protections … because of this law,” he said.
Conservatives counter that 310 million Americans would also have to comply with the law, face fines if they violate the law and accept health care from a government-regulated medical system if the judges do not enforce the Constitution’s protection against a overpowering government.