Yesterday in a joint press conference with the Canadian prime minister and Mexican president, President Obama expressed his confidence that the Supreme Court will uphold his signature health care law, following more than six hours of oral argument before the Court last week.
Obama suggested that the Court—not Congress—would be taking an “unprecedented, extraordinary step” if it overturned ObamaCare despite the fact that the Court will need to stretch its Commerce Clause jurisprudence to the outer limits to find that Congress’ mandate that people buy inflated health insurance plans is a proper exercise of Congress’ power to regulate commerce. But putting on his “constitutional law professor” hat, Obama chastised the Court, noting that the justices must exercise judicial restraint and resist the temptation to strike down a law passed by “a strong majority of democratically elected Congress.”
As Robert Alt argues, the President distorted the meaning of judicial activism in an effort to influence the justices as they determine the fate of ObamaCare. Alt explains that judicial activism occurs
“when judges write subjective policy preferences into their legal decisions rather than apply the constitutional or statutory provisions according to their original meaning or plain text” and “does not necessarily involve striking down laws, but may occur when a judge applies his or her own policy preferences to uphold a statute or other government action…clearly forbidden by the Constitution.”
Not only does Obama misunderstand the proper role of a judge, but he’s twisting the facts as well, claiming that Congress passed ObamaCare with a “strong majority.” That’s a bold misrepresentation (the House passed it 219-212 on party lines and the Senate passed it with 60 votes) and is simply a “rank attempt to intimidate” the Court into upholding ObamaCare. With any luck, the justices will tune out this and any other attempt to sway them as they evaluate the constitutionality of ObamaCare.