The U.S. Supreme Court isn’t expected to rule on the constitutionality of President Obama’s national health care law until Thursday, but liberals have stepped up their efforts to delegitimize the Supreme Court as nakedly partisan in the event that it strikes down all or part of the law.
New York magazine’s Jonathan Chait declared that “the constitutionality of the individual mandate is so obvious that the mere fact that the controversy exists suggests a frightening will to power by the legal arm of the conservative movement.” At last week’s Take Back the American Dream conference of liberal activists, Rep. Keith Ellison, D-Minn., told the audience that any decision against the law should viewed in the context of the court being “a wholly owned subsidiary of the right wing.” Not to be outdone, James Fallows wrote at the Atlantic that if the court finds the law unconstitutional, it will be a sign that the country is experiencing a “long-term coup.”
The court may not make its ruling known until at least Thursday. But despite what liberals claim, challengers to the health care law have put together a very strong case that the law is unconstitutional. In two years of briefs and arguments, the administration has never been able to produce a previous case in which Congress was allowed to force individuals to purchase a private commercial product.
As former Solicitor General Neal Katyal reluctantly conceded during oral arguments before the 11th Circuit, “I don’t think it’s come up specifically in those terms.” He attempted to argue that the landmark 1964 civil rights case Heart of Atlanta Motel v. U.S. — in which the court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants — was a relevant example. But as several courts concluded, that was an example in which businesses had already chosen to engage in interstate commerce, thus opening them up to regulation.
The fact that the mandate is unprecedented does not mean it’s unconstitutional. But in two years, Obama’s lawyers have never articulated a tangible limit on federal power that would remain if the court allows the individual mandate to stand. Their attempted argument — that health care is “unique” — is an ad hoc creation that cannot be clearly applied in future cases. This is what led Frank Hull, a Clinton-appointed judge, to co-author the 11th Circuit opinion striking down the mandate. She concluded: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”
A CBS/New York Times poll taken earlier this month found that 68 percent of Americans want at least the individual mandate struck down. Yet in the Daily Beast, liberal Michael Tomasky advises that if the decision doesn’t go their way, “Democrats should come out swinging against the Court.” Republicans should hope Obama takes his advice.
