Obamacare in Court
Judicial repeal is a good thing; political repeal is better.


Andrew C. McCarthy

Of course, the Supreme Court did not invalidate much of the law, and the GOP got demagogued anyway. Now, with eerie similarity, congressional Republicans seem content to let the courts deal with Obamacare. And once again, it is no lock that the Supremes are going to save them.

By my count, there are four solid votes for upholding the ACA — the Court’s four leftists; Congress’s Commerce Clause power is the key to much that they hold dear. I know, I know, Justice Elena Kagan has a recusal issue: As Obama’s solicitor general, she was involved for a time in designing the law. Maybe she’ll shock us, turn out to be an ethical paragon, and step aside. But Supreme Court justices have a very wide berth in deciding whether their involvement in the subject matter of a case disqualifies them from ruling on the case. Call me crazy, but I suspect that upholding the crowning progressive achievement of the president who gave her this lifetime plum is one of the things she got appointed to do. Do you think Obamacare just might have been in the back of her mind during the confirmation hearing, at which she opined that Congress has the power to mandate that you eat your veggies?

I’m nowhere near as certain that the “no” votes number four, let alone five. Justice Kennedy is a wild card, especially when there are ways to split the baby — and with Obamacare, there are if you want to find them. As for the four reliably conservative justices, their general watch-word is restraint. They will not like the law, but they would also be the first to tell you that a judge’s job is not to legislate his preferences. Within broad parameters, the American people have the power, through their representatives, to enact stupid laws. “Dumb,” “freedom-killing,” and “financially ruinous” are not synonyms for “unconstitutional.”

It is black-letter law that courts must presume congressional acts are constitutional and invalidate them only if there is no plausible argument in their favor. I need no convincing that some, probably all, of the Court’s conservatives hate the Court’s Commerce Clause jurisprudence. I’m sure they believe Wickard v. Fillburn — the seminal and worst excess, dictating what farmers could grow for their own consumption on the theory that these activities affected the interstate market — was wrongly decided. But to believe the case was wrongly decided is not the same as concluding that the Court should reverse jurisprudence Congress has relied on throughout the ensuing three-quarters of a century. Nor is it the same as concluding that Obamacare is the straw that breaks the commerce camel’s back.

For what it’s worth, I’m persuaded that Obamacare is unconstitutional. I think (among other flaws) requiring Americans to purchase a commodity — forcing them to engage in commerce — is an intolerable extension of bad precedent. And the prudential stare decisis doctrine is not a good reason to preserve wayward jurisprudence. (Stare decisis is a doctrine only a Republican could love: It’s routinely ignored when the Left wants to clothe its pieties in constitutional raiment, but studiously invoked to abdicate from the work of undoing progressive desiderata.) Nevertheless, we’re not talking about what I would do. We’re making a prediction about what the justices will do. I hope they’ll invalidate the law, but I wouldn’t bet Filburn’s farm on it. There is a reason why some conservative judges, such as Judge Laurence Silberman of the D.C. Circuit, have upheld Obamacare.

There is also another ground for trepidation. As we’ve seen, the Court is reluctant to invalidate a bad law even in normal times. But this is not a normal time. The Obamacare case will almost certainly be decided in late June or early July. Striking down Obamacare would be seen as a rebuke of a troubled presidency’s defining accomplishment just as Obama’s reelection campaign enters the stretch run. The Supreme Court, particularly the conservative justices, abhorred being seen — extremely unfairly — as deciding the 2000 election. They don’t like being demagogued by the New York Times any more than congressional Republicans do, and it’s a fair bet they won’t want to go through that again — especially pitted against the same Alinskyite Organizer-in-Chief who shockingly lashed them before a national television audience during the 2010 State of the Union address (over the Citizens United campaign-finance case).

We owe a great debt to the state attorneys general and other conservative lawyers and foundations at the forefront of challenging Obamacare. Would that every interested party had their passion and skill. When the ACA was ramrodded through Congress, its lack of constitutional grounding was overlooked. The lawyers have given us what the shoddy legislative process did not: a weighty theory that Congress lacks the power to do what the ACA does. If that theory carries the day, Obamacare is dead — case closed.

Even if that happens, though, there is mountainous legislative work to be done if the central planning at the root of health-care dysfunction is to be addressed. And if the Supreme Court rules in favor of Obamacare, Republicans will then have to legislate in the teeth of what the media will paint as a ringing Supreme Court endorsement. Such a ruling would energize the Left, inflate President Obama’s gravitas in the eyes of moderates, and demoralize Obamacare opponents. It would dramatically undercut the Republican presidential nominee.

A final thought on GOP insouciance: If the fight is too much for Republicans now, do they really think it gets easier after the Supreme Court rules?

 Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.


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