President Obama this week took advantage of the fine spring weather and a meeting with Canada’s and Mexico’s leaders to make an extraordinary statement in the White House Rose Garden. He responded to questions about his health care takeover. Obamacare is currently being reviewed by the U.S. Supreme Court. The nine justices are expected to rule on the measure by this June. Their ruling could come right in the middle of a heated presidential election campaign.
Mr. Obama sternly lectured those members of the high court who are about to vote on the legislation formally titled the Patient Protection and Affordable Care Act. The president said that he is “confident” that the members of the Supreme Court will rule that Obamacare is constitutional. He stated that the individual mandate is the only way to assure that people with pre-existing conditions are covered. The individual mandate is that part of the law that was most seriously contested in three unprecedented days of oral arguments.
If Congress can force you to buy health insurance, the justices asked, what can it not do? Many of those who presented amicus briefs to the Supreme Court have argued, compellingly, I think, that the Founders rebelled against a king and Parliament who taxed us for tea. The king and Parliament never ordered us to buy the tea. Is it likely, opponents of Obamacare ask, that those Founders would have given a president and Congress the kind of power they would never have permitted a distant king and Parliament to exercise over us?
“Justices should understand,” Mr. Obama said in a stern and almost menacing tone, that to rule this law unconstitutional would be an act of “judicial activism.” The law, he said, is a “duly constituted law” that was passed by a democratically elected Congress.
Talk about voter intimidation! The justices will soon vote. They are on notice that Barack Obama will not only disapprove of them if they don’t vote his way; he clearly intends to campaign against the Supreme Court if its rules that Obamacare is unconstitutional.
What’s the problem with this? Didn’t President Franklin D. Roosevelt campaign against the Supreme Court when “nine old men” overturned the National Industrial Recovery Act, the centerpiece of his New Deal legislation? Yes.
Even the imperious FDR, however, never hectored the members of the Supreme Court as they sat in black-robed silence in the front row at his State of the Union Address. Mr. Obama did this brazenly and outrageously at his 2010 speech before Congress.
Didn’t Abraham Lincoln criticize the Supreme Court in his Inaugural Address in 1861? Actually, no. Lincoln did say in the presence of Chief Justice Roger B. Taney that the court’s rulings deserved respect, but that not all political questions could be considered settled once they were submitted to “that eminent tribunal.” Taney may not have liked what he heard, but he certainly was not intimidated. Nor did he refuse to administer the oath of office to President Lincoln.
What about President Reagan? Didn’t he object to the Supreme Court’s overturning the abortion laws of all 50 states? He did indeed. But he submitted his arguments to the Supreme Court as formal statements of executive branch legal opinion. He sent his solicitor general up the steps of the U.S. Supreme Court with all dignity and respect for the independence of the judiciary as a coequal branch of government. That’s because Reagan revered the Constitution.
Theodore Roosevelt referred to the White House as a “bully pulpit.” He meant, of course, that it was a great place for presidents to offer moral leadership. He was right. But Mr. Obama has taken that a dangerous step beyond. He has made the White House a “bullying pulpit.” Let’s hope those justices who will vote on Obamacare’s constitutionality are not intimidated by this unprecedented and dangerous move.
Ken Blackwell, a member of the Council on Foreign Relations, is the former U.S. ambassador to the U.N. Human Rights Commission.
