By Alexander Bolton - 04/02/12 06:02 PM ET
Democrats have waged a not-so-subtle pressure campaign on the Supreme
Court in recent days by warning a ruling against the healthcare reform
law would smash precedent and threaten popular social programs.
President Obama was the latest to weigh in when he declared Monday
that a wide array of legal experts would be astonished if the court
struck down part or all of his signature domestic initiative.
"I'm confident the Supreme Court will uphold the law," Obama said
Monday during a Rose Garden press conference. "That's not just my
opinion, but also the opinion of legal experts across the political
spectrum."
He said it would be "unprecedented" for the court to strike down the
individual mandate, which requires the uninsured to buy health
coverage or pay a penalty.
Nan Aron, president of the Alliance for Justice and a prominent
advocate during Supreme Court confirmation battles, said Obama and
Democrats have made it clear that they would fiercely criticize a
ruling against the healthcare law.
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"I do think the statements by some of the senators and the president
are serving notice to the court that, frankly, if the court does
overturn the law, in essence, the court will become a political
football in the election," Aron said.
"I wouldn't have said that before of the president's comments. By
virtue of the fact that he spoke out, it does serve notice: Think
twice before throwing out this baby. It will be viewed more as a
political act," she added.
Justices have shown in the recent past that they are not impervious to
the president's words and how they might influence public perception
of the high court.
Justice Samuel Alito shook his head and mouthed the words "not true"
when Obama criticized the court's decision in the Citizens United case
during his 2010 State of the Union address, and Aron noted that Chief
Justice John Roberts has a reputation for being mindful of his legacy.
"We do know this is a justice who reads the press about himself. There
have been reports about that," Aron said.
Senior Democratic lawmakers have warned the court would upend the
legal precedent that gives Congress the power to provide for the
nation's general welfare if it rules that the Constitution's Commerce
Clause does not allow for the mandate to have insurance.
"If they were to throw out the healthcare law, things like Medicare,
Social Security, food-safety laws could be in jeopardy on the very
same grounds," Sen. Charles Schumer (N.Y.), the third-ranking Senate
Democratic leader, said on NBC's "Meet the Press" Sunday. "It would be
a dramatic, 180-degree turn of the tradition of the Commerce Clause."
Democrats have cited the words of conservative legal scholars and past
Republican support for the individual mandate to bolster their
argument.
Schumer and Senate Health Committee Chairman Tom Harkin (D-Iowa) have
both quoted J. Harvie Wilkinson III, who was appointed by former
President Ronald Reagan to the 4th Circuit Court of Appeals. Wilkinson
said "the idea that Congress is constitutionally disabled" from
regulating the healthcare market is a "heavy judicial lift."
Schumer called Wilkinson the dean of conservative judges on the courts
of appeal and has frequently reminded reporters that the Heritage
Foundation, a conservative think tank, first proposed the idea of a
health insurance mandate in 1993.
Harkin said, "the opponents of healthcare reform, the Affordable Care
Act, are basing their arguments on politics rather than precedents."
"This court can go no other way but to uphold the individual mandate
the Congress has put into the individual mandate," he said at a press
conference Democrats held after the second day of oral arguments.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) warned the
court last week that a ruling against the healthcare reform law would
have far-reaching consequences.
"I think it's a clear-cut case. I think you have to stretch to say
this is unconstitutional but Social Security, for example, or Medicare
is constitutional," Leahy said. "If you say this is unconstitutional,
then you have to say Social Security and Medicare are also
unconstitutional. I'm not sure the court is prepared to do that."
Senate Republicans have taken a different tack. Senate Republican
Leader Mitch McConnell (Ky.) has declined to predict how the court
will rule.
Despite filing an amicus brief in the case, he has been relatively
reticent about the legal merits of the case.
He said last week that if the court upheld the mandate, its
interpretation of the Commerce Clause would be so broad as to make
meaningless its constraint on federal power.
"What that leads to ultimately, we don't know, but we know the
suspense will be over in June," he said.
McConnell says regardless of how the court rules, he is committed to
making repeal of the law a high priority if Republicans capture
control of the Senate.
Some legal experts, however, doubt the Democratic public-relations
campaign will have much influence on Justice Anthony Kennedy, who is
widely seen as the swing vote on the closely divided court.
"I don't think they'll have any impact. It's possible they would have
an adverse impact," said Lanny Davis, who served as special counsel to
former President Bill Clinton and is the principal at the law firm of
Lanny J. Davis & Associates.
"The history of Justice Kennedy is quite independent and thoughtful
and he'll make the decision on the merits and not on political
influences. I won't say that about every justice, some of whom came
out of the political world."
Davis, a columnist for The Hill, said it is "perfectly legitimate" for
justices to consider the political ramifications of their decisions.
He noted that then Chief Justice Earl Warren strove to unify his
fellow justices behind a unanimous decision in Brown v. Board of
Education of the City of Topeka, Kan., knowing the decision would have
broad political impact and receive criticism. That decision struck
down the "separate but equal" doctrine for racial segregation.
Last week's hearing on the 2010 healthcare reform law was the most
time the Supreme Court set aside for oral arguments since Brown v.
Board of Education, according to Senate sources who reviewed the
record.
--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy
--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy
--
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