POTUS vs SCOTUS on Affordable Care Act?

Apparently, President Barack Obama did not like how the arguments over his massive health care measure went before the U.S. Supreme Court. On April 2, he not only came out swinging against the Court, but questioned the Supreme Court's role in our system of checks and balances. It was an unprecedented attack from a president of the United States.

For good measure, Mr. Obama, who taught classes in constitutional law, either misled people or proved that he fails to understand what judicial activism is.

On challenging the Court's role, Obama argued that the Court should "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."

Was the President serious here or is this just a case of playing politics? Either way, it's quite troubling.

Of course, there is nothing "unprecedented" or "extraordinary" about the Supreme Court having to take the step of "overturning a law" when that law flies in the face of the Constitution. After all, the Supreme Court's job is to make sure that laws do not cross the line and violate the Constitution. This was made clear by the Founding Fathers, and in the 1803 Marbury v. Madison decision.

Given that serious responsibility, even if a law were passed by significant majorities, that would not influence or affect the Court's responsibility. But large majorities most certainly were not the case with ObamaCare. The President declared that his health care measure "was passed by a strong majority of a democratically elected Congress." This is another troubling declaration.

Again, is the President misleading for political purposes, or has he talked himself into something that does not align with reality? ObamaCare just got enough votes to avoid a filibuster in the Senate (60 votes), and squeaked by in the House of Representatives by a margin of 219-212, without any Republican support.

So, Mr. Obama got the history of his own health care law wrong, and served up a disturbing assessment of what the proper role of the Supreme Court is.

But there was more distortion when it comes to the Court's role and judicial philosophy. President Obama said, "And I'd just remind conservative commentators that, for years, what we have 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, the President is correct that judicial activism, or a lack of judicial restraint, has been the biggest problem on the bench. But judicial activism is not about the Court overturning a law when that law is unconstitutional. Rather, judicial activism is when the Court decides to take on the role of constitutional author and/or legislator. That is, rather than following and properly applying the Constitution, judicial activists decide to ignore what the Constitution actually says and replace it with their own preferences. They decide to rewrite the Constitution as they see fit. This is where the unelected seek to take on the job of elected lawmakers, which is completely inappropriate.

For example, judicial activism was on full, unsavory display in the Court's 5-4 decision in the Kelo v. City of New London eminent domain case, when the Court redefined "public use," as written in the Constitution, to mean public purpose, and then allowing politicians to define public purpose however they like.

In the end, President Obama did not like the signals that were being sent by justices during the arguments over ObamaCare, in particular, that the individual mandate represents an unprecedented, sweeping and constitutionally groundless expansion of federal government powers. His responses amounted to a political fit, in which he said things that undermined his own reputation. The President seems to be laying the groundwork for accusing the U.S. Supreme Court for playing politics with ObamaCare during his reelection campaign. But if the Court overturns ObamaCare on true constitutional grounds, that is not politics. Instead, it is our government's checks and balances working as they should.

It was bad enough that President Obama pushed a costly, damaging health care measure through Congress that makes no economic sense, but now he is levying unwarranted attacks on the Supreme Court as it considers serious questions about the law as it pertains to the U.S. Constitution. Shame on the President.


Raymond J. Keating is chief economist for the Small Business & Entrepreneurship Council. His new book is "Chuck" vs. the Business World: Business Tips on TV.