In his excellent rundown of yesterday’s ruling by the Ninth Circuit refusing to reinstate President Trump’s immigration executive order, National Review’s David French noted something rather curious about the court’s rationale. In essence, the court said that Trump’s campaign rhetoric was an issue to be considered when determining the validity of the order. French notes that this is pretty specious reasoning:
There’s another reason why this should raise eyebrows. As the Washington Examiner’s Phil Klein notes, it wasn’t that long ago that the Supreme Court ruled similar rhetoric from President Obama was irrelevant. Obama wasn’t campaigning for office, but he was trying to sell Obamacare.
In 2012, the Supreme court decided National Federation of Independent Business v. Sebelius in favor of preserving Obamacare’s individual mandate. Loosely speaking, the case hinged on the following distinction. It was almost certainly unconstitutional for a law to require every American to purchase insurance. However, Congress does have the power to tax. The mandate could only be legal if it was considered a tax that penalized people without insurance, rather than an affirmative mandate to purchase insurance.
However, Obama and his surrogates were very sensitive to public perception of the exorbitant cost and intrusive scope of Obamacare. In the years before National Federation of Independent Business v. Sebelius was decided, Obama had repeatedly insisted the mandate was not a tax. The Supreme Court ignored whether or not Obama’s own words spoke to the intent of the law, and upheld the mandate.
