Until this week, the most famous presidential rebuke of a sitting Supreme Court justice belonged to Andrew Jackson. “Justice Marshall has made his decision,” steamed the man accused by his opponents of Napoleonic ambitions. “Let him enforce it!”
Enter Barack Obama. Sensing an opportunity to salvage his re-election momentum, if not his marquee legislative accomplishment, the president has taken the unprecedented step of warning the court not to rule against him.
Politically, it’s a logical step. The administration fatally underestimated the strength of the case against the individual mandate, and Solicitor General Donald Verrilli failed mightily to press its case with confidence during oral argument. It’s possible that a ruling against the Affordable Care Act (ACA) will create fresh problems for Mitt Romney, but it’s certain that Obama will feel the sting, politically and personally, far more. Otherwise, he wouldn’t have said this:
[…] I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care. So there’s not only an economic element to this and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.
At one level, this is a noncontroversial point: you can’t guarantee that everyone gets health care unless you compel everyone to get health care. At another level, of course, that tautological observation carries significant moral weight — whether in terms of sustaining liberty or combating suffering. At the highest level, however, the one the president is operating on, the prescriptive message is clear: in the event of a conflict between the two, the utilitarian calculus of human suffering should take precedence over the Constitution and the interpretation of law.
That is a remarkable enough statement to direct at a Supreme Court. Some are incensed that Obama dares remind the court that a “strong majority” passed the ACA, when obviously the number of votes for a piece of legislation has nothing to do with its constitutionality. But the president’s admonition that the court mind its politics is particularly notable because he believes it is consistent with his warning that the court not indulge in judicial activism:
[…] for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly-constituted and passed law. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.
Whatever you think about the moral urgency of universal healthcare, the president’s suggestion that only an activist court would strike down the ACA is being made in very bad faith, especially for a former professor of constitutional law.
The problem is simple. If enough justices agree that the individual mandate is unconstitutional, they must then decide whether to sever the head of the law and leave the body standing. Judicial activism, recall, means judges are performing legislative tasks. Which behavior is more like a legislature’s: throwing out the whole of the ACA or picking through the mammoth law in a hunt for which provisions seem viable without the mandate?
The answer is clear: the court would be lapsing into activism if it were to reassess the law piece by piece, as Congress would do after the mandate were struck down, if its members so chose. Striking down the entirety of the ACA may be extreme and unprecedented. But the individual mandate is an extreme provision in an unprecedented piece of legislation — much, in both cases, to the satisfaction of its reform-seeking supporters. Once the determination has been made that the mandate is unconstitutional, the judgment that legislates least from the bench is the judgment that requires Congress to try again.
A lone question remains as to whether striking down the individual mandate would, all on its own, amount to legislating from the bench. Jonathan Chait concludes that the answer must be yes because some justices “personally detest” the law. E.J. Dionne moans that “today’s hard-line conservatives” are beyond reason, since the “individual mandate was a conservative idea.” Convinced that the mandate is constitutional, critics of the justices who disagree have no choice but to impute to them malevolent, or at least arbitrary, motives.
Alas, no one believes that all five of the justices who might join together in scrapping the mandate are hard-line conservatives with a heartfelt vendetta against the ACA. It is a well-known law of thermodynamics that no majority opinion which includes Justice Kennedy can be a hard-line conservative opinion.
If anyone on the court frequently enjoys near-dictatorial influence, it’s Justice Kennedy. But even if you think he or Justice Scalia is a capricious little dictator — and even if you were right! — if the mandate does go down, or if the whole of the ACA goes with it, fault cannot be placed at the feet of dictatorial conservatism. It must be placed at the feet of the Constitution.
And this is why President Obama’s threat to the court is so hollow. Uphold my law, he tells them, or the public will hate you. (That was the fear which provoked the shambolic plurality decision in Planned Parenthood v. Casey.) Uphold my law, or I will run against you, and my party will follow my lead. But he can’t run against the court. He can only run against a minority of the justices — the conservatives who alone are powerless to overturn a law, and who cannot perform Jedi mind tricks on the court’s powerful moderates.
The American people will not hate the court if the ACA is struck down. They will demand that Congress pass something that can pass constitutional muster. And as Dionne himself admits, that might be good news for conscientious liberals. After all, Justice Kennedy “even hinted that it might be more ‘honest’ if government simply used ‘the tax power to raise revenue and to just have a national health service, single-payer.’ Remember those words.”
So be it. The key word to remember is “honest,” as in, honest about the Constitution.
James Poulos is a columnist at The Daily Caller, a contributor at Ricochet, and a commentator in print, online, and on television and radio. Recently he has been the host of The Bottom Line and Reform School on PJTV and a fellow of the Claremont Institute. His website is jamespoulos.com and his Twitter handle is @jamespoulos.