Obama Predicts Health Care Victory, Labels Vote Against Law As “Judicial Activism”

Yesterday, President Barack Obama made the surprising prediction that the Supreme Court would uphold the health care law and further labeled those who would vote against it as judicial activists. I am not sure what he is basing his prediction on, but the comment on judicial activism is both unfounded and unwise.

With most observers saying that five justices, including Justice Anthony Kennedy, appeared to be opposed to the law on federalism grounds, the prediction of victory lead some to allege “insider information.” Fingers were pointed at Justice Kagan who some (including myself) felt should have recused herself because she was Obama’s Solicitor General at the start of litigation to defend the act and received emails on that effort. However, there is no basis to make such an accusation against Kagan who I believe would not commit such an egregiously unethical act in telling Administration officials what the initial vote was in the conference last Friday. Obama may simply be engaging in hopeful thinking (it is after the Administration that ran on “Hope”) or his continuing belief that the cases favor the Administration. It also seemed to set up his next (and much more disturbing statement) on judicial activism.

Obama stated that:

“Ultimately, I am 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 . . . 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, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”

Of course, all acts found to be unconstitutional were generally the product of democratic process. The point of an independent judiciary is to serve as a bulwark against abuses by the majority. Obama’s statement about judicial activism is equally wrong. There are good faith arguments on both sides of this question and one does not have to be a judicial activist to vote to strike down the law on federalism grounds. I support national health care but raised the same federalism concern before Congress passed the law. I do believe that the law violates federalism guarantees while I respect my friends with opposing views. It is simply unfair to characterize a vote against the law in advance as judicial activism — a term that is often used by people whenever a court rules against their view of the law. To put it simply, it was a cheap shot and beneath a president.

Moreover, it was unwise at this time. This comment is not going to appeal to any of the justices, particularly not Justice Kennedy. The Administration needs Kennedy’s vote and he previously voted to strike down two federal laws on the federalism grounds — the very judicial activism described by the President. Additionally, the Administration is trying to convince Chief Justice Roberts and Justice Scalia to moderate aspects of any ruling. They are likely to view this comment as directed at them. Roberts was ticked by Obama’s statement during his State of the Union address where he criticized the Court. While I felt Roberts failed to condemn the actions of Justice Alito at that address and felt that Alito’s actions were far more problematic, Roberts felt the President was irresponsible. Now, he is condemning any vote against the law in advance as activism. Even if Roberts and Scalia (or Kennedy) were inclined to vote against the individual mandate, they may be on the fence on questions like severability.

The message can easily be taken by justices as a threat that, if you vote against my law, I will denounce you publicly as judicial activists. I realize that this is an election year, but I believe a president should transcend such petty attacks. In this case, it is not just petty but inimical to the Administration’s case.

Source: Yahoo

177 thoughts on “Obama Predicts Health Care Victory, Labels Vote Against Law As “Judicial Activism””

  1. TonyC.
    Small world, deep pockets.

    I just posted this at Doubling Down:

    Here’s my hyperbole for the day.




  2. @Idealist: They call it the “Golden Rule”: Those with the gold, rule.

    Democracy has been a great experiment; it really threw a wrench in the works for the rich for a generation, but they learned to deal with it. It is simple, really: You only have to buy about a thousand politicians in the USA in order to control the government. To be precise, at leats 250 congressman, 41 senators, and then state governors, big city mayors, and some state level assemblymen.

    Besides that, take over the major media outlets, which are a big capital expense but essentially pay for themselves. Presto, rich cabal. You own the government and control pretty much all the legislation that might impact you and also control everything said about you.

  3. I am shocked that the NYTimes has a bare-faced lie as an article on its front page on-line.

    It’s column heading is Common Sense, which means it’s opinion and can be any crap as to truth or correct facts. I’ll leave the article reading to you.
    In all fairness, It should have had an opposing view published with it.

    Here is one commenter who had some vital points: among others this excerpt:
    “…According to the Congressional Budget Office, the Ryan plan will result in the domestic discretionary budget for non defense items will decline from 8% of GDP to about 1%. The author’s contention that this does not amount to radical transformation of the government is simply baffling at best and mendacious at worst. ”

    Here is the whole comment as such are hard to find afterward, and it seems important to read.

    “Shankar Mukherji Cambridge, MA

    It has been a long time since I have seen a more extreme example of misleading false equivalence between the two parties’ approach to the federal budget than what is contained in this article. The author of this article has obviously not spent any time learning about the details of the Ryan plan.

    According to the Congressional Budget Office, the Ryan plan will result in the domestic discretionary budget for non defense items will decline from 8% of GDP to about 1%. The author’s contention that this does not amount to radical transformation of the government is simply baffling at best and mendacious at worst.

    Let’s look at a specific example: scientists like me who rely on the federal government to finance basic research that is not amenable to funding from private industry. The Ryan plan, by imposing 80% cuts on agencies like the NSF and NIH, will very literally threaten to entirely end basic scientific research in the United States.

    But the author wants us to pretend that bringing up inconvenient truths like this amounts to hyperpartisan rhetoric. This kind of facile argumentation only serves to aid those who wish to destroy the ability of the government to do anything more than cut Social Security checks and maintain the armed forces.”

    Does everybody know that the NIH, National Institute of Health, not only finances basic medical research, but has an outreach program to influence us to do preventive health measures in our lives, as mentioned earlier here a Turleys as being a factor most neglect and which often, I believe they say, can add five to ten years of healthy living to all who do it.

    And most of the high-tech stuff of all kinds start at NIH funded research.
    The drug people are only interested when it reaches molecule modification/patent stage before market introduction.
    All basic medical research, whatever private or educational institute who does it, comes out of the NIH budget.

    And Ryan wants to kill it. And this article praises him. ??????????

    Killing Medicare by privatizing it is also said to be his baby.

  4. TonyC,
    Such a hell that they can’t be stopped without it going so far. You know the list of wrongs, no sense I repeat them. Stick around and be careful.

    Just wrote this to Obama:

    Dear Mr. President,

    We are all waiting to see what SCOTUS decides.

    And it is being lively debated on the Turley blawg, in several threads. Even your record is scrutinized and criticized.

    One issue is why you did not stand firm on the public option. Many feel that you quite simply do not dare or do not care if we get taken more and more to the cleaners by the for-profit insurance companies and the ditto health care providers.
    Not to speak of the drug companies.

    They say that what we need is a single-payer system which is run on a strictly cost basis. That regulation by government agencies, even as a result of future laws, will not reach the same benefit versus cost effects.

    Are you afraid of corporate America? Do you ever hope that the power of government will be restored to educated and responsible citizens, instead of the near-fascistic situation we have now.

    It is easy to see that only small sums are needed to steer congressional district elections with attack ad spending. Swinging the House, as was done in 2010, is an example.

    And these defeats cow other congressmen so that their voting choices are also “controlled”.

    Even your position before the election is sensitive to what measures you take vv the companies’ influence and their profits.

    That I have many other issues with you will be saved to another time:
    Killing Amerians without due process, spying on us all, expanding the national surveillance system directed at detecting those of differing opinions, warring, etc.

    But you are our last hope, since the other circus has even come out against Medicare and women’s health care.

  5. @Idealist: The charismatic outsider with idealism intact would be “removed” before getting near to be a candidate.

    I do not discount the possibility, leaders do get assassinated. But it may make little difference: Such a leader will not start the movement, they will be the focal point of the movement. Martin Luther King did not start the civil rights movement, that really began before he was born with the NAACP; but MLK became the focal point because of his oratory, and his ability to arouse sympathy (or shame) in whites and resolve (and courage and sacrifice) in blacks. Killing MLK did not stop the movement, it made him a martyr most of the nation still admires.

    In the situation I am talking about circa 2016-2024, people will be under severe duress, the economy is blown apart. I mean in the sense of bread lines, soup kitchens, and 50% unemployment. Savings and retirement plans are gone and worthless, long looted and hyper-inflated away.

    The movement has to come first. The leader emerges from the movement by acclaim, as the one people rally around. The inspiring communicator with a plausible plan, something to do, someplace to go, a way to join the fight against the oppressor.

    For a real life example, MLK took a page from Gandhi, and (with others) devised the “civil disobedience” and bus boycott ideas in Montgomery. Combined with compelling oratory, MLK inspired the oppressed and gave them things to do that worked, and could not be effectively countered. Boycotts did demand sacrifice, but punished the oppressors financially. That combined with his Christian brotherhood rhetoric shamed enough oppressors that the combination resulted in an unqualified victory; the bus segregation laws he first targeted were simply struck down in their entirety.

    If the leader is assassinated, the movement will claim a martyr that strengthens them, and produce another leader. Leaders do play a central role, and can increase the size and power of a movement, but it is important to understand that the leaders are a product of the energy of the movement. Killing them will not dissipate the energy, and can in fact turn the movement more angry and violent with greater resolve. So the next leader to coalesce from the movement may be more inclined to battle. This is more human nature; leaders become like beloved brave warrior kings to their followers, so the followers want vengeance for the murder of a family member they see as the best of them, and are more willing to join or endorse the more militant and angry members amongst them.

    Some leaders are cult leaders, and when the leader is killed, the cult just evaporates. Leaders of movements are not like that because people are primarily committed to the movement, not the individual. They may revere the individual leader, but what is really driving the movement, what is compelling the masses to act, is ideas and a demand for justice and fairness.

    The “powers that be” cannot kill a movement of tens of millions of people, and that is what we are talking about. I predict the ultra-rich will loot the country and jet away, leaving the rubble of the USA to sort itself out while they live in luxury. There are a dozen beautiful countries happy to take in members of the ultra-rich and treat them like royalty. So they win. Again. If we are lucky, we or our kids will survive to reset the board and try again.

  6. You’re most welcome, gbk. It seemed to tie in nicely with the fact that a for-profit health care system is inefficient and detrimental to patient care as a medical matter. Choosing greed and selfishness to be one’s personal operating principles is a sad indication of character and a bad choice ethically speaking, but to inflict those values on something so vital, urgent and necessary as health care is a tragically shortsighted, cynical and cruel thing to do to society. A crime with a victim. A tale that only ends badly.

  7. “Americans took fewer prescription drugs, visited the doctor less often, and made more trips to the emergency room for treatment as unemployment and the struggling economy forced people to go without medical care last year, according to a new study.

    The number of times Americans saw the doctor declined 4.7 percent in 2011, the second straight year people cut back on office visits by more than 4 percent, according to market research from the IMS Institute for Healthcare Economics. Non-emergency hospital admissions declined 0.1 percent in 2011 after rising 1.9 percent the previous year. But emergency room visits leaped 7.4 percent last year, which IMS suggests is the result of high unemployment and the rising numbers of uninsured people seeking medical care.

    Rising health care costs are affecting a growing number of people as the ranks of the uninsured swell, health insurance premiums rise as benefits shrink, and the burden of out-of-pocket costs grows heavier. The typical American family will spend $20,000 on health care this year, another recent study says. Health insurance companies, hospitals, and physicians are striving to contain health care spending, which reached $2.6 trillion last year, a tenfold increase since 1980.”


  8. Bron,

    You accuse me of being a statist which seems to be your favorite admonition on this blog. Assuming we agree on the definition of this term I can assure you that this is far from the truth. The following is not an argument of logic but rather a reflection and sharing of my beliefs, and it starts quite simply.

    I like people; even though I have little to do with most. I believe in helping people that I do not know; I believe that a world of educated and healthy people can be a benefit to all — I do not view my potential position amongst the seven+ billion humans of this world as a zero-sum proposition.

    It’s amazing to me that given all the differing strategies of human cultural adaptation over many millennia you seem to think that the most current is the most valid. This is a common mistake made by many civilizations and cultures throughout the course of history and is what I meant in my earlier comment of, “[y]ou truly lack empathy and ignore the histories of common thought of many centuries that most likely led to your very existence.”

    It seems the fundamental lesson of history — that the zealotry of greed combined with beliefs of cultural superiority leads to wars of many kinds — is lost on you. Where will this hubris of confidence embedded in any particular belief end? Should we ignore that our species (discounting insects and fungi) dominates the planet through millennia of guarded but obvious cooperation?

    More to the point, do you not see the “quality” of your life intertwined with others? Do you not see the realm of human knowledge impacting and informing your own? How do you “know” what you claim to know?

    How does the economics of hamburgers fit into the swath of human existence?

  9. TonyC,
    re electrical outlets. no need here. something to do with being swedish—no amusement or cell phones in wait rooms—-no signs either.
    Different cultures. Turn off your cell when entering a medical facility seems the norm here.

    but your inventiveness is just what the system needs.

    And triage goes without saying.

  10. TonyC and GeneH.

    The charismatic outsider with idealism intact would be “removed” before getting near to be a candidate. That is the hitch.

    As for waiting times in socialist Sweden it is max 30 minutes for doctor time. On a queue basis. The allotted time is 10-15 minutes. And no coattails out the door.
    Seems specialists here in private practice have more of that with them—-the profit factor. My clinic is private, taken over in from a county run one.
    Appointments for generalities, routine run-through of the many medicines you take comes with two´weeks notice for you, reservations by you take 2 weeks for non-urgent, 2 days if infections, but queueing is better. Leave for doctor visits are never a question when getting off work. Evening clinics are usually in the same locale, but another company perhaps. Urgent things like possible cancer are next day matters. Faster than that is the ER.

    Interesting the Canada question.

    Here everybody expecting gets baby knowledge in depth. Dads too. And when you reach puberty you are fully prepared in advance.

    Of course old farts who may die soon may be spared the ordeal and possible bad outcome of invasive treatment of slow paced prostate cancer .

    My current worry, a pacemaker replacement. I must have it for the heart to beat. So they better not screw up or they got cold meat on their hands.
    Scheduled for 24th. Wish me luck.

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