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
Professor Turley blogs this from the North American nation with universal health care. Perhaps he should take an informal survey relating to 1) how Canadians feel about their own health care coverage (given, that everyone gripes about everything as a baseline) and 2) how Canadians feel about their cousins to the South and our manner of “providing” health care coverage.
I’ve found asking such questions in Canada to be both useful and depressing.
A long time ago, I was invited to sit on the ethics committee of a rather large hospital. We met once a month, or more often if an emergency type question arose. At one of our regular meetings, a memo from one of the biggest insurance companies was circulated. In essence, it said that if an expected ICU stay was going to be more than five days, the patient was not to be admitted to ICU. Reason? Only 17% of patients who stay five or more days in ICU do not survive. Those actuarial odds were incompatible with their bottom line.
Bron,
Fallacy of false equivalence.
People like you are preventing people from getting heart surgery PERIOD because you insist on a for-profit health insurance model. Paying claims cuts into profits no matter how you slice it. Leaving a profit motive in health care insurance will always result in denials of coverage to boost the bottom line because people like you have more greed than empathy. The Hippocratic Oath says “First, do no harm”. Denying coverage in the name of profits is doing harm and antithetical to the purpose of health care.
Gene H:
If I worship money and others like me worship money why do we try to improve so that we can compete? In 1989 the company I worked for bought IBM pc’s for the grand total of $5,000 each for 40 mb of hard drive memory. Today you can buy a computer for $700 that has 1 gb of ram and a 250 gb hard drive.
You dont think the same thing would happen if insurance companies were actually free to compete?
People like you are preventing heart surgeons from offering bypass surgery for $750 bucks and improving the time to recovery and the speed of the procedure.
Judges order Justice Department to clarify Obama remarks on health law case
A federal appeals court is striking back after President Obama cautioned the Supreme Court against overturning the health care overhaul and warned that such an act would be “unprecedented.”
A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.
A source inside the courtroom, who did not want to be identified, confirmed the incident to Fox News. The testy exchange played out during a hearing over a separate challenge to the health care law. It was apparent, however, that the justice who questioned the government attorney present was referring to Obama’s recent comments about the Supreme Court’s review of that law.
http://www.foxnews.com/politics/2012/04/03/judges-order-justice-department-to-clarify-following-obama-remarks-on-health/#ixzz1r1ENYsPp
Jill got it right. Pres. Obama and his legal crew are not folks I trust for constitutional interpretation. And the “judicial activism” refrain is problematical for several reasons. First, it is a political, rather than legal criticism, and suggests an inability to meet an argument on the merits. Second, its usage has become so ubiquitous that any meaning it had, if it ever had any, has been lost. Third, it is one more arbitrary assault on a branch of government which is already dangerously close to losing its authority in the public mind. Criticism of judicial pronouncements needs to be couched in the language of the law.
Bron,
“But health care has no pipe lines or conduits.”
Yeah, health care just has people’s lives whose collective worth are apparently much less than pipe lines or conduits.
“There is no reason to restrict profit.”
Except where the quest for profit reduces human life to a mere accounting ledger of profit/loss. And, according to you, this is a paradigm we should expand upon because it, “works for hamburgers,” and Lasik surgery is the epitome of health care competition?
Your analogies are so simplistic that I’m amazed you don’t laugh at your own thought processes and comments on this blog. You truly lack empathy and ignore the histories of common thought of many centuries that most likely led to your very existence.
You should be careful with your bombast based perspective of dollars and cents because someday your well-laid plans of self-determination will be ripped asunder through possibly no fault of your own and you will wonder why you are alone in the gutter.
Maybe somebody should inform the President that the Sct is Appointed for life….. They can do whatever the he’ll they want and still get a paycheck….. Obama saying this could potentially turn the one swing vote he had against him…. Not to smart….. Stupid…..
Good news Swarthmore that the twisters missed you!
Bron,
Your comment that competition will bring down health care hasn’t worked in my lifetime. Besides, the ACA actually includes private industry so they are being handed 30-40 million new customers. How is that anti-competition? Just because the government is adding some restrictions to those customers, it is 30 million more customers. Of course, the preferred single payer would be a big hit to the bottom line of the insurance companies so they may want to be careful what they wish for.
“while I dont agree with the mixed utility companies, I do see a reason. But health care has no pipe lines or conduits. There is no reason to restrict profit.”
Yeah. Maximizing the dollars spent on patient care isn’t really a reason to restrict profit at all. Yep. That’s the kind of “thinking” that worshiping money gets you.
Bron,
Great idea (irony). Wonder why its never been done. So simple.
Can you assure all the other benefits, ie more fuller and guaranteed coverage including prior-conditions , health checkups, etc etc which is included in ACA would also be agreed to by your 200 million who don’t want it.
Show me the approved legislation and big O will sign it.
Otherwise you’re just talking—–as usual.
Tony C:
while I dont agree with the mixed utility companies, I do see a reason. But health care has no pipe lines or conduits. There is no reason to restrict profit. Just make the environment more friendly to more insurance companies by allowing more competition. It works for hamburgers, you pay $20 or you can pay $1, while the more expensive burger is certainly more tasty, they will both keep you alive and satisfy your hunger.
Food is much cheaper now than in the 60’s [adjusting for inflation] because of competition. Health care isnt any different as demonstrated by Lasik surgery.
TonyC
White man speak with forked tongue, ie pessimist and optimist.
Problem. I understand precisely and share the politician vs voters problem.
And I like the idea of a controlled business model.
Only problem, power companies here in Scandinavia have subverted all that, with the emphatic participation of major operators who are state-owned. People scratch their heads here, the el bill goes up and up, the nuke plants go at half the effective delivery time as in Finland (not in the oligopoly). And for some odd reason, electricity prices are keyed to European coal electricity producers, ie much higher than production costs here. Weird.
So either our governments are screwing us or someone regulating it all.
Your model with the 15percent of premiums would require premium price regulation or they would raise the premium just to raise their 15percent.
Or???
Swarthmore mom:
“What happens to the 35 million people that are affected by this bill?”
What happens to the 200 plus million who probably dont want this?
We can help the 35 million by doing something else. We already give some of them food, shelter and education. Just ask the 150 million working men and women to chip in an additional $100 per year and the 35 million to pay something based on their income level if they have a job.
Why do you keep mentioning that Kagan should have recused herself without noting that Thomas has a much more serious conflict of interest? His wife has been paid for advocating against the law.
Am I missing something here? Going forward should we just assume that if you have a financial interest in the result of a case before the Supreme Court it’s ok to pay the spouse of a justice hundreds of thousands of dollars?
http://mediamatters.org/mmtv/201204030008 Limbaugh calls Obama a “thug” because of his remarks about the Supreme Court.
http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/
The Fifth Circuit just issued a throwdown. “Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.
Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”
@Swarthmore: I am not a politician, but I do not think there is a positive way to phrase it. Politicians are flooded with so much information and demands that they ignore all of it. The only thing that gets their attention is the threat of losing their seat (or an election). They are (metaphorically) like hardened criminals, the only thing that compels a hardened criminal is a credible threat of force. No amount of pleading, anger, logic, or tears will sway them. Politicians are similar, nothing sways them except a credible threat of losing an election, and Liberals simply cannot muster such a threat, so the supposedly liberal party openly serves their corporate masters with impunity.
Mespo,
“In this climate, it’s Pollynnnish to think deal making isn’t going on in chambers . . .”
Indeed it is.