The debate about President Obama's health care reform law has heated up in recent weeks as the Supreme Court case reviewing its \nconstitutionality has moved forward. The case, which is unlikely to be decided until June, if any time at all within the next two to three years, will appear quite differently depending on which news station one happens to be watching. The potential outcome has been forecast as either a certain strike-down of the law or an equally certain nod to the law's constitutionality.
President Obama threw the opposition a bone last week in the form of a controversial statement he made at an April 2 press conference in the Rose Garden. In discussing the health care law, he stated that he was "confident that the Supreme Court will 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."
This statement has brought about a good deal more criticism than President Obama likely expected. South Carolina Governor Nikki Haley accused the President of "bullying the Supreme Court." Haley is among those who felt Obama's statements were not entirely appropriate. Maybe "bullying the Supreme Court" is a little strong, but I agree with Haley to some extent - Obama's statement, intentionally or not, was highly unprofessional.
Anyone with a fundamental understanding of the Supreme Court recognizes it is the justices' job to review laws according to their interpretation of the United States Constitution. Without delving into a history lesson, I will merely state that cases such as Marbury v. Madison established the Supreme Court's power and precedent of judicial review. Since this decision in 1803, the Supreme Court has ruled on numerous state and federal laws. And laws cannot really be reviewed for constitutionality until they have, of course, passed through a legislative body.
Thus, laws other than Obama's Affordable Care Act (ACA) have passed with the approval of Congress and later been ruled unconstitutional by the Supreme Court. So a literal interpretation of Obama's statement will show that he was simply factually incorrect in describing the Supreme Court's "unprecedented, extraordinary step of overturning a law."
Obama's team realized this and hastened to cover the mistake. Attorney General Eric Holder came out in Obama's defense, reiterating what should have been obvious to a former teacher of constitutional law such as President Obama. The "courts have final say," Holder said. Obama himself has tried to put his statement in a different light, too, saying that what he meant was that the Supreme Court had not ruled against a federal law "on an economic issue." But no amount of damage control can make the earlier statement disappear.
Another explanation exists for Obama's mistake: It could be no mistake at all. A C-Span poll taken in 2009 showed that 51 percent of voters could not name a single specific case heard by the Supreme Court. An equal number did not know the number of justices who make up the Supreme Court. Given the public's disturbingly limited knowledge of the decisions and makeup of the Supreme Court, coupled with Obama's supposed command of the subject, it is not absurd to suggest the President's statement was not just an innocent mistake. Rather, his statement could have been a calculated attempt to mislead a public which is woefully uninformed of the workings of the Supreme Court by asserting that it would be gravely in error should it shoot down the ACA.
Now, I can practically hear the protestations of Obama supporters. He is not the first president to criticize the Supreme Court, and he will not be the last. I will concede that point - numerous presidents have taken issue with Supreme Court decisions, including George W. Bush, who was strongly against the ruling passed down by the Supreme Court in Hamdan v. Rumsfeld. Certainly, no president wants his agenda damaged by the Supreme Court's ruling, but the judicial branch plays a crucial role of checking and balancing the power of the executive and legislative branches. And it is Obama, unlike Bush, who responded by blatantly misrepresenting the Supreme Court to the public.
President Obama has taken a defensive stance which borders on openly challenging the highest court in the land. Such a stance is indicative of his perception that not all is proceeding according to plan. If the President was expecting his words to win an easy passage for the ACA, then he was mistaken. His inappropriate statements have instead opened him up to wide criticism. The statements, and the hastily attempted explanations, seem to point either to the weakness he feels his law has or an underhanded attempt to sway an uninformed public. But it is not Obama who will be the deciding factor in passing his ACA. It is, as Holder wisely said, up to the Court.
Sam Novack's column appears Tuesdays in The Cavalier Daily. He can be reached at s.novack@cavalierdaily.com.
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