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. Five Hypocrites and One Bad Plan
    By Robert Scheer

    The Supreme Court is so full of it. The entire institution, as well as its sanctimonious judges themselves, reeks of a time-honored hypocrisy steeped in the arrogance that justice is served by unaccountable elitism.

    My problem is not with the Republicans who dominate the court questioning the obviously flawed individual mandate for the purchasing of private-sector health insurance but rather with their zeal to limit federal power only when it threatens to help the most vulnerable. The laughter noted in the court transcription that greeted the prospect of millions of the uninsured suddenly being deprived of already extended protection under the now threatened law was unconscionable. The Republican justices seem determined to strike down not only the mandate but also the entire package of accompanying health care rights because of the likelihood that, without an individual mandate, tax revenue will be needed to extend insurance coverage to those who cannot afford it.

    The conservative justices, in their eagerness to reject all of this much needed reform, offer the deeply cynical justification that a new Congress will easily come up with a better plan — despite decades of congressional failure to address what is arguably the nation’s most pressing issue. In their passion to embarrass this president, the self-proclaimed constitutional purists on the court went so far as to equate a mandate to obtain health care coverage with an unconstitutional deprivation of freedom; to make the connection they cited the spirit of a document that once condoned slavery.

    These purists have no trouble finding in that same sacred text a license for the federal government to order the young to wage undeclared wars abroad, to gut due process and First Amendment protections, and embrace torture, rendition and assassination, even of U.S. citizens.

    Now they hide behind the commerce clause of the Constitution to argue that the federal government cannot regulate health care coverage because that violates the sacrosanct principle of states’ rights. If the right-wingers on the high court consistently had a narrow interpretation of federal power over the economy, there would be logic to the position expressed by the Republican justices during the last three days of questioning. Of course, the court’s apparent majority on this has shown no such consistency and has intervened aggressively, as did the justices’ ideological predecessors, to deny the states the power to protect consumers, workers and homeowners against the greed of large corporations.

    We would not be in the midst of the most severe economic meltdown since the Great Depression had the courts not interpreted the commerce clause as protecting powerful national corporations from accountability to state governments. Just look at the difficulty that a coalition of state attorneys general has faced in attempting to hold the largest banks responsible for their avarice in the housing disaster.

    The modern Supreme Court has allowed the federal government to pre-empt the states’ power to protect homeowners, whose mortgage agreements were traditionally a matter of local regulation and registration. The court has no problem accepting Congress’ grant of a legal exemption in the Commodity Futures Modernization Act of 2000 that allows the bundling of home mortgages into unregulated derivatives.

    The court has vitiated the power of the states to control interest rates, even though quite a few had explicit provisions in their constitutions banning usury. The result is that loan-sharking by banks that can claim to be engaged in interstate commerce is constitutionally protected, which is why there are no limits on mortgage, credit card or personal loan interest rates.

    The sad truth is that President Obama and the Democrats brought this potential judicial disaster upon themselves. In light of what has been said this week in the Supreme Court, it seems inevitable that the linchpin of the 2010 reform — mandated coverage — will be thrown out, probably along with the crucial accompanying reforms. Forget coverage for the young and those with pre-existing medical conditions. The Democrats will protect themselves from this reversal by arguing that all they did was copy the program that this year’s prospective Republican presidential candidate implemented when he was the governor of Massachusetts. Mitt Romney’s plan included the dreaded mandate that he and the Republican justices condemn.

    How ironic that Barack Obama’s health care agenda would be in a far stronger legal position had the president stuck by his earlier support of a public option. Clearly, our federal government has the judicially affirmed power under our Constitution to use public revenues to provide a needed public service, be it education, national security, retirement insurance or health care. Obama’s health care reform should have simply extended Medicare and Medicaid coverage to all who wanted and needed it — no individual mandate — while allowing others to opt out for private insurance coverage. That’s an obvious constitutional solution that even those die-hard Republican justices would have a difficult time overturning.

  2. @Gene: The solution to wait times is simple; give people a choice: We can cut wait times 20% by increasing your health tax 10% (because it only requires hiring more personnel, not more equipment or hospitals). So give us a vote, citizens! Would you rather pay more, or wait longer?

    Personally, I think the number one thing missing from most waiting rooms is free electrical outlets. There are enough portable personal entertainment and work choices that most people would rather wait than pay, if they just had a place to plug in.

  3. @Gene: I completely agree (on physical pain). Desperation erodes principle and morals and breeds violence. Gangs and violent oppression and using force to take survival resources are also human nature.

    I doubt there would be an actual revolution in the USA, because we can still vote. But I expect, eventually, a political revolution, a wholesale overhaul of the entire corrupt system. In the USA, at least, it is possible to translate celebrity into political power, and it is possible to become a celebrity with liberal political ideals intact. So my wild guess is that once the pain is truly felt and the demand for an honest politician is strong enough, the outsider that leads the way and becomes a truly honest and courageous politician will be somebody that gained national celebrity entirely outside the political system. I do not expect that to happen until 2024, so it is early to speculate on identities, but I really expect a “Jesse Ventura” type Presidency by then. (Not Ventura specifically, but an intelligent complete outsider that has never held any prior political office, with real workable ideas like Ventura was, IMO).

  4. Smom,

    I have friends in Canada and to a one they have only one complaint with the system: wait times. Most them, however, recognize that the problem stems for a shortage of primary care physicians. When it comes to specialists, yeah, there’s a triage system but several of these friends have had issues where a specialist was required. When the situation is critical, there is no wait – they get you to a specialist ASAP. People, especially Americans, seem to equate triage as some kind of personal insult to their person when it is a medical judgment designed to take of the most seriously injured first. It only seems like an inconvenience that you’re not treated on a first come first served basis until you arrive at the door about to die and are told 100 people are line before you, take a number.

  5. Gene, A friend of mine’s daughter moved to Canada recently. She had a baby there and was quite pleased with the outcome and the healthcare. The interesting thing is that the nurse assigned to your case visits often and gives recommendations on how to care for the baby. I wonder if Americans would feel that a government employed nurse checking on them would be an invasion of privacy.

  6. “Most Canadians happy with their health care system

    Published: Sunday, September 06, 2009

    Of The Oakland Press

    The notion that Canadians are upset with their government-run health care system simply isn’t true, according to advocates for the system who were invited to talk about Canada’s system by the Metropolitan Detroit AFL-CIO.

    Most Canadians have some form of employer-based supplemental insurance that covers prescription drugs, optical and dental care, says Katha Fortier, a former nurse who serves a director of the health care workers section of the Canadian Auto Workers.

    Despite criticism from conservatives and grudging support for funding by Canada’s two major political parties, 85 percent of the Canadians are satisfied with the system, noted Ron Drouillard, a former Ford employee, who is now president of the activist-oriented Windsor Worker Action Center. “You can always find exceptions,” he said.

    Canadian Prime Minister Stephen Harper began his political career as an outspoken critic of the Canada national health care system. Since he’s held national office, Harper has had no choice but to support the nation’s health care. “He can’t touch it. They would like to privatize it but they can’t,” Drouillard said.

    Fortier also said, contrary to the arguments pushed by critics of the Canadian system in the U.S., there is no rationing in the Canadian system. The system also cares for elderly citizens right through to the end of life. “There is no rationing or any kind of panels that dictate some Canadians are no longer entitled to care.” he said.

    Fortier says Canadian doctors do “prioritize” some elective-type care, meaning some patients, whose conditions demand attention, are treated ahead of others, whose condition aren’t as severe.

    However, she said, the system is fair and patients further down the list are encouraged to use diet, exercise or medication to avoid invasive forms of elective surgery, which is often the worst option.

    “No one is ever denied treatment if they need it,” said Fortier, who spent 20 years working as a nurse in rural northern Ontario.

    Some of her colleagues in the health care field have migrated to the U.S. in search of better pay. But a fair number also have returned to Canada because they became disillusioned with the U.S. system, which they described as chaotic and wrapped in insurance-company red tape.

    “Our care is just as good,” said Fortier, who added she was delighted to have a chance to talk about Canada’s system at the forum organized by union activists in Detroit.

    “In some areas, our outcomes are better. Canadians live longer and infant mortality rate is much, much better,” she said.

    Moreover, no Canadian citizen is ruined financially because they or a member of their family get sick, Fortier and Drouillard said. “I know my grandparents almost lost the farm back in the 1930s because of doctor bills. But it just doesn’t happen today,” Fortier said.

    By contrast, Americans swept up into the American health care system can often wind up facing a financial crisis.

    Personal bankruptcies have soared right along with medical costs in the U.S.

    The standard figure is that more than half of all personal bankruptcies in the U.S. are related to medical bills. However, I have also seen newer research, suggesting as many as 65 percent of personal bankruptcies in the U.S. are related to medical bills that can’t be paid.

    In a substantial number of the bankruptcies, the people filing had insurance through their employer.

    Fortier suggested that the key reason Canadians prefer their system over the American system is that it is ultimately far more fair. Everyone is treated and no one has their life crushed by unpaid bills.

    She certainly has a point.

    In the week before I spoke with Fortier, I read two different news stories about unpaid medical bills. In one case, a family in Georgia had a $63,000 bill for cancer treatment wiped out at the stroke of a pen by a local hospital. Personally, I’m glad the hospital responded, but the write-off does raise other issues about who ultimately did pay the bill.

    In another story, a woman with a $500 medical bill was being hounded by collection agencies. It’s the difference between those two cases that makes Canadians shudder and reinforces the belief their system really is better.

    Contact Joseph Szczesny at (248) 745-4650 or joe.szczesny@oakpress.com.”

  7. “Doctors working less amounts to “spending less time per patient.” I cannot understand why Canada’s health care system is not held up in spotlights as a prime example of complete operational failure.
    My doctor’s office (which is far from the worst) allows 10 minutes with the doctor for “routine” appointments, which is mostly everything, but if a patient has a “problem” he’ll be booked in for 15. A check-up, which expectedly takes more time than this, is frowned upon and there’s typically a 3 month wait for the next available appointment. Even at that, one’s last questions are often addressed to flapping coat tails, as he/she must rush off to see the next patient.
    This lack of time further translates into impossible emergency room waits, misdiagnosis, non-diagnosis, strained and miserable staff, death panels in various forms, and it sometimes results in deformity or death. And this is not just something one reads about in the paper, or hears about from a friend of a friend. This is in my own back yard.
    Each province does their own thing in health care, and we’re each at slightly differing stages of collapse, but in Alberta it’s a horrible mess. I rarely hear anymore the mindless crowing that we in Canada have fabulous, free health care. It’s a horror story that seems to be at last sinking in; we’re experiencing it quite personally now.”

    From a Canadian citizen

  8. To both of you,
    Now that’s what I call telling the truth like it is.

    The difference between bread and circuses in Rome and now, is that now the emperors have modern tools to implement ancient goals.
    In two thousand BCE, the emperor’s major concern was who and how to tax. And just as in fascism, you can’t tell where the corporations end and the government begins.

  9. Tony,

    I agree in most part with your last statement but with one caveat.

    Americans are different now than then they were before the first Great Depression. They are more acclimated to a culture of immediate gratification, more desensitized to gratuitous violence and better armed. There is likely to be an enormous amount of physical pain to go along with that economic and psychological pain at some point.

  10. @Idealist: So who the hell is going to wage war on this fascistic successor to Nazi Germany, and restore democracy? Any way out?

    Of course there is a way out. We just won’t like it, because the way out is economic collapse and another great depression.

    This is human nature, the vast majority of humans assume that if they are not personally hurting, then everything is going to work out just fine, and they do not need to do a thing. Politics and government policy are treated like sports or a complicated TV series: Something people watch if they are “into” it, but otherwise unimportant to daily life.

    But whether the Bears win or lose, or Jesse wins The Voice, or Sally will ever be truly free of the Reaper, is not going to affect your job, or income, or whether you live or die in real life.

    The only way to get people to pay attention to politics is through the pain of politics impacting on their real life. The only way to change politics is through a majority. Thus, the majority must feel enough pain that they willingly sacrifice their sports, shows, music, concerts, and other entertainment and distractions in order to pay attention to politics and devote those many hours every week to effecting political change.

    Like it or not, that implies an enormous amount of economic and psychological pain. I think it implies catastrophic economic collapse and a great depression; which led to the New Deal and Great Society in the first place.

    The people will restore democracy; but they have to be (metaphorically) broken and bloody on the ground before they will rise in anger. They haven’t lost enough yet, or what they have lost is not real to them yet.

  11. @Bron: They are going to end up being indentured servants to the government. Making only what some b-crat says they can.

    There is no reason for that, whatsoever. HERE are the average pay scales for medical practitioners; from the bureau of labor statistics. The average general practitioners earn about $180K; Surgeons and anesthesiologists earn about $240K. We can also see from the table that the average is a slightly high approximation of the median, so more than half of doctors (the majority) earn less than these figures.

    That is with free choice. Military doctors, also all volunteers, earn about 20% less than the average. For a lot of people in the medical field, and not just doctors, wages are not their first concern. Many are much more concerned with whether they are given the time, liberty, support and resources to do the right thing by their patients.

    You, Bron, are the one that believes in free markets. Since these are obviously acceptable wages for most doctors, the government could do, in government run health care, exactly what it can do for government run road building, police, firefighting, school teachers and DMV workers: Set a wage high enough to attract sufficient qualified and willing candidates to fill the positions available.

    Nothing I have advocated would prevent doctors from forming an individual or group practice, just as they do now. Let them form a fully functioning private hospital with surgery suites, radiology, the whole shebang. If they want to take that entrepreneurial risk, why should we stop them?

    Conversely, if it turns out their for-pay hospital cannot compete with the free health care provided by the government, why should the government protect them? The market will have spoken, and it will have said that people prefer whatever level of care the government can provide for free over the level of care their for-pay hospital can deliver.

    No civil servant in the USA works involuntarily. They all willingly take their jobs and can quit when they want (except soldiers, but they can also quit periodically). None of that should change if we instituted free national health care, and the pay of doctors and other medical personnel would be determined by the market, just as all other civil servant wages are determined.

  12. For now we have two branchs of our government obviously controlled by corporations. Judicial 5-4 and the Congress.
    The executive branch seems also totally subservient considering who works there making the key decisions as to policy.

    When your own party fails you, is in fact traitorous, what do you feel?
    So why does the Democratic Party persist in their pretense?

    He promised change, and this is what we got. Not entirely of his making, but ACA was not the right answer without a Medicare-type option——and that’s his fault solely (for not fighting) Better defeat now, and a public option next time. Now we have unleashed costs, greed and profits.

    Was the gruel worth the inheritance?

    And what can we do?

  13. Tony C.
    I’m 6 hours ahead of USA ET, so can’t stay and follow the thread.
    Was interesting today to read your lesson about the insurance companies controlling Congress in defense of their profit.
    In effect, any group of corporations can control the outcome of district elections, and thus in extension our laws.

    Nice civics lesson.

    The laws which enable this influence can’t be revised for the same reasons, multiplied eventually by the cash of all other companies who use this election pressure on politicians..

    Does not this corporate controlof poitics match the definition of fascism?

    So who the hell is going to wage war on this fascistic successor to Nazi Germany, and restore democracy?

    Any way out?

  14. in all of the conversation about the right of the people to have health care, some would say at no cost, is the rights of the people who provide health care. Their rights are being violated.

    I wouldnt be a doctor in this climate for all of the tea in China. They are going to end up being indentured servants to the government. Making only what some b-crat says they can. I have a feeling the quality of medical doctors is on the inflection point and will be heading south in the future.

  15. @Swarthmore: I am insured across the board like a CEO. I too know people that are now insured that were not before. The question for me isn’t whether it does any good, it is how much it costs to do that good, and I believe the ACA ultimately will cost us ten times as much for the good you cite than it should have, the government could have covered those people with Medicare for 10% of what it will cost us, and should have done just that.

    In my world, the college kids I know that are now on their parent’s insurance could have been covered through the standard university plans, paid for by the government, for a fraction of what their insurance is costing their parents: College age kids are, on average, the healthiest and fittest adults in the country, their insurance should be a pittance.

    I think you aren’t looking at the whole picture, we are still getting ripped off, I think we are paying $10 for $1 in new benefits. There is a reason the insurance companies did not try to defeat the ACA, and allowed the politicians to pass it, and there is a reason Obama cut the deal to kill the public option, and drug reimportation. Their profits were protected and enhanced by the ACA, and (IMO) they got a lot more than they gave up.

    I am not arguing the ACA is worthless, I just think it is worth far less than what we will have to pay for it, and it won’t do anything at all to reign in health care costs overall.

  16. Tony The Affordable Care Act is far from perfect but it undeniably helps some people. I know of a case personally of a 22 year old with Crohn’s disease. Her place of employment does not provide health insurance. She has a pre-existing condition and that disqualifies her from buying insurance in the open market. Now she is covered under her father’s insurance until she is 26. Insurance companies are a necessary evil at this point in time. Do you purchase health insurance, car insurance and homeowners or just cast your fate to the wind?

  17. @Bron: you do understand that government forcing someone to buy health care is not willing participation?

    I am unequivocally opposed to a mandate to buy anything from a private, for-profit entity. That includes car insurance, btw, I think any state that requires car insurance should provide a state-run alternative insurance program that is a not-for-profit enterprise (I do not know of any).

    To be clear, I would not be opposed to a health care tax that provided insurance coverage for everybody, and that would not be voluntary participation either.

    It just would not be revenue to a private, for-profit entity. If the government wants everybody to have something, they should provide it at cost, and exactly at cost, or tax us for it exactly at cost.

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