Tuesday, July 10, 2012

New Common Sense: How to Explain the Obamacare Decision

 

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How to Explain the Obamacare Decision

A recent Pew Research Center poll shows that 45 percent of Americans aren’t sure what the Supreme Court ruling upholding the Affordable Health Care Actactually did. Both President Obama and Mitt Romney seem, unfortunately, to be among that number.

Both have said things that further muddles public understanding of the purpose of the Supreme Court. And this confusion makes it more difficult to understand the strengths—and considerable weaknesses—of the decision in National Federation of Independent Businesses v. Sebelius.

For his part, Obama says that the individual mandate is not a tax, even though the Court upheld the law on that basis and his own Solicitor General had made such an argument before the court.

Obama has been cavalier in his defiance of law and court decisions. His Administration has chosen not to enforce laws, including one prohibiting illegal immigration, ironic in light of the Supreme Court’s recent decision upholding part of an Arizona anti-illegal immigration law. He has also made recess appointments even though the Senate remained in session.

If former constitutional law professor Obama has approached lawlessness in his promotion of executive power, Romney has fled altogether the teaching role of the presidency on the Constitution. Romney would have preferred that the Court overturned Obamacare for going beyond the legitimate powers of Congress. But he, like Obama, initially denied that the law was a tax. And then, in a change, he seemed to accept as a necessity Chief Justice Roberts’s opinion that the law imposed a tax. "The Supreme Court has the final word,” Romney maintained. “They have spoken. There is no way around that.”

To the contrary, a President or political candidate must not remain silent or, following a decision, be silenced on how the Constitution is to be interpreted. Both President Obama and Governor Romney should take cue from the model constitutional educator, Abraham Lincoln. The Dred Scott opinion of 1857 horrified Lincoln, because it argued that the Declaration of Independence and the Constitution posed no barriers to slavery.  Lincoln said the extreme decision had not established judicial doctrine. By opposing a decision “it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.” Because the Court is not the authoritative interpreter of the Constitution, opposing a particular decision is not tantamount to opposing the Constitution.

What does the Supreme Court make of its role? Chief Justice Roberts maintains that “It is not our job to protect the people from the consequences of their political choices.” Was the Chief Justice saying, in the spirit of Justice Oliver Wendell Holmes, that “if my fellow citizens want to go to Hell I will help them”? Is Roberts similarly derelict in his judicial duty? Many conservatives would agree with the joint opinion of the four conservative justices that the law is so reckless that it cannot be compatible with a Constitution of ordered liberty.

Roberts had said the Court’s role is not to assess the wisdom of a law; it is not the policy-making body.  Indeed, he argues, the Court must consider all reasonable possibilities to avoid construing a statute as unconstitutional. He concludes that the individual mandate is “just a tax hike” for those declining to have appropriate medical insurance. And thus, by his argument, it is within Congress’s powers.

But Roberts was also thrusting the controversial law back into the democratic fray. Was he not affirming the people’s rights—and responsibility—through their elected officials to keep, reject, or amend the law?

However we answer these and other questions about the case, we must be discontent with either presidents who avoid their law-enforcement responsibilities established by the Constitution or presidents who fail to articulate meaningful thoughts about the Constitution.

Obamacare is, once again, in the hands of the people and their democratically elected leaders. Let’s hope those leaders exhibit more wisdom than they’ve shown so far.


                      
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