In oral arguments yesterday about Obamacare’s individual mandate, Supreme Court Chief Justice John Roberts posited that if the government could force people to buy health insurance, its power would be nearly unlimited:
Once we say that there is a market and Congress can require people to participate in it…it seems to me that we can’t say there are limitations on what Congress can do under its commerce power, just like in any other area.… All bets are off.
Justice Kennedy, considered the swing vote on the court, seemed to agree:
Here, the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases.… [That] changes the relationship of the federal government to the individual in the very fundamental way.
These are welcome statements by the Supreme Court justices and positive indications for those who believe Obamacare is unconstitutional. Yet it’s important to remember that the judicial branch is coequal to both the legislative and executive branches, which means no matter the ruling on the law, the Supreme Court is not the final arbiter.
In 1832, for instance, the Supreme Court declared the Indian Removal Act unconstitutional. President Andrew Jackson defied it, stating, “John Marshall has made his decision; let him enforce it now if he can.” Indian removal commenced in 1838 under the command of General Winfield Scott.
When two coequal branches of government disagree, the people are the ultimate arbiter, expressing their will through election channels.
This is not to suggest that, if the act is struck down, President Obama will defy the court’s ruling. It’s merely to show that the fight may not be over after the decision comes down: It may end up that Congress wants to repeal in its entirety, the executive wants to keep it, and the Court ends up throwing out parts of it but not the whole thing. In that case, it will necessarily revert back to the political branches and, by election, the judgments of the American people.
Regardless of the ruling, opponents of the law must continue the fight at all levels of government—judicial, legislative, and executive.
