Bench Memos

NRO’s home for judicial news and analysis.

Calling the President’s Bluff


To hear Professor Obama tell it, you’d think the case for Obamacare’s constitutionality is so straightforward that only a simpleton or a hack would raise questions.  At a Minnesota town hall he summarized it simply:

If the Supreme Court follows existing precedent, existing law, it should be upheld without a problem…. If the Supreme Court does not follow existing law and precedent, then we’ll have to manage that when it happens.

Yet, somehow, these open-and-shut legal issues have stymied federal judges from both parties on multiple courts, resulting in hundreds of pages of judicial opinions. 

The President is pretty gutsy to argue that the case is a matter of mere precedent.  The Constitution, not President Obama’s audacious dreams, is the highest law in this land, and it is beyond dispute that this particular law raises new issues concerning the Constitution’s limits on government power. 

For starters, both the Congressional Research Service and the Congressional Budget Office have highlighted the “unprecedented nature of the individual mandate.”  As the CBO wrote, Congress “has never required people to buy any good or service as a condition of lawful residence in the United States.”

Not surprisingly, every court considering the issue has agreed that the power claimed in the president’s signature health-care legislation is unprecedented.  Even those who argue that Obamacare should be held constitutional can’t point to any precedent that controls the case.  Why?  Because Congress has never been so bold as to claim that the Commerce Clause power allows it to mandate all Americans to buy a product as a condition of lawful residence.  But the Professor, er, President suggests the resolution of the constitutional challenges is just a matter of following precedent.

President Obama’s erroneous and overconfident statement reads like a ham-handed attempt to influence the Justices, resorting to name-calling to intimidate any judges who would disagree with him.  If so, I suspect the effort will fall as flat as his attempt to use the State of the Union to bully judges who voted against his administration’s position in Citizens United

If, on the other hand, the president is really so confident in his legal position, I would hope he’d be willing to move forward with dispatch and petition for cert at the Supreme Court.  Even liberal commentators say that an en banc appeal to the Eleventh Circuit will likely just result in another loss for the administration.

So go ahead, Mr. President.  If the case is so easy, we’ll see a 9-0 decision by next June and you can put this whole silly debate behind you.  I dare you.


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