NOT among the checks and balances that the Constitution incorporates into our system is intimidation by the president of the Supreme Court. But intimidation appears to be the course President Obama has selected, following his solicitor general’s stumbling defense of Obamacare before the justices last week.
Conservative commentators have been gloating ever since that it was only natural that Donald B. Verrilli, Jr., whose job it is to argue cases on behalf of the government, stammered through his presentations. It was, in Justice Anthony Kennedy’s words during the three-day review, “a heavy burden” to advocate the constitutionality of this particular law. In the weeks before ramming Obamacare through the House of Representatives without a single vote from the opposition party, then House Speaker Nancy Pelosi indicated on her official website that she believed the Constitution put few if any limits on Congress’s scope of action. As Michael Barone recalls in his current column at National Review Online (http://tinyurl.com/6vh77eo), one (now gone) House Democrat told his constituents when questioned on the matter at the time, “I don’t worry about the Constitution.” Still, according to the president speaking to reporters yesterday, questioning the constitutionality of this law adopted with so little attention to the Constitution would be an act of unwarranted and rarely employed judicial activism.
Many issues divide the two major political parties today, but none so strikingly as their concept of the Constitution and, by extension, the rule of law. It is not too much to say that for Democrats power and law are dangerously close to becoming synonymous. What other conclusion can you reach when the secretary of Health and Human Services announces that Obamacare gives her power to compel the Catholic Church to act in opposition to tenets of its faith? Did any nationally prominent Democrat shout, “Stop. This is exactly the kind of government action the First Amendment was intended to protect against”?
But now we have something more. The same president who, following the Citizens United decision, dressed down the members of the court in their presence during a State of the Union address yesterday offered a preemptive dressing down. Like other senior Democrats, during the Obamacare debates he dismissed the idea of constitutional limits on what the government could compel citizens to do. And when such objections threatened to derail the bill, his administration may have used false prosecution of Alaska senator Ted Stevens to secure the final vote needed for Senate passage. Then, when a special election in Massachusetts deprived them of that Senate margin, they conjured, in effect, a parliamentary trick to achieve final adoption. But now the president suggests to the court that exercise of its constitutionally mandated role of judicial fidelity to our founding law would, in this case, be illegitimate.
Forget the counterproductive stimulus programs, the Jack’s-beanstalk-speed growth of federal spending and debt. Forget the inept foreign policy towards almost every country from Russia to Mexico. The truly unsettling fact about this administration is its will to power. The non-recess recess appointments are a case in point. The broad use of regulation to circumvent Congress is another, as, for example, EPAs announcement last week that it would restrict greenhouse gas emissions from U.S. power plants, despite Congress having voted down such measures numerous times.
So more than most, the coming election will be about the nature of federal power. It will be about the vigor of checks and balances, of enumerated powers and limited government, and about whether such concepts live today in a republic of liberty – or whether the idea of liberty is an 18th century anachronism in this, oh, so much more sophisticated age.
In last week’s column, I mistakenly characterized how Obamacare undermines Medicare. Following is the corrected version of the paragraph in question. “Pipes” is Sally Pipes, president of Pacific Research Institute and author of the recently published The Pipes Plan: The Top Ten Ways to Dismantle and Replace Obamacare (http://tinyurl.com/7ewml28), from which, in my haste, I garbled one key fact and omitted another. The entire revised article (“The Supreme Court and a Plan for Replacing Obamacare, Whatever the Court Decides”) can be found at my archival site www.clarkjudge.org under the category “Economic Policy: Healthcare.” I apologize for the error and thank the reader who alerted me to it:
“Pipes adds that, as part of forcing 20 million new recipients into Medicaid, the program takes the government’s biggest debt problem (unfunded liabilities) and makes it worse. To help pay for the Medicaid expansion, the new law moves $500 billion over the next decade from Medicare to Medicaid. What sense does it make to raid Medicare? Last year Medicare’s trustees put their program’s unfunded liability at $25 trillion, and even that figure Medicare’s chief actuary immediately disavowed as not representing “a reasonable expectation of actual program expenses,” which he said would come in vastly higher. The projections, he noted, assumed reduced reimbursements to healthcare providers that were entirely unreasonable and Congress would feel compelled to reverse.”