Obama's message to SCOTUS

It would be unseemly for POTUS to lecture SCOTUS about how it should decide the challenge to health care reform.

But, in a Rose Garden press conference today, Obama has done just that indirectly by giving a forthright assessment of what he thinks they will do.  That is permissible.

It turns out to be the best, succinct argument that I have heard for upholding the constitutionality of the Affordable Care Act.   Here are Obama's major points (from a Huffington Post article):


1.  First and foremost, precedent.  He noted that two staunchly conservative lower court justices had agreed that the mandate and penalty were permissible under the Commerce Clause.  It might have been better if he had cited prior SCOTUS decisions rather than the decisions by lower ranked judges on this same bill.   But he was emphasizing the "staunchly conservative" judges.

2.  Second, under the ACA, changes have already been put in place that affect millions of children, Medicare's prescription drug coverage, and other insurance reforms including the ban of pre-existing condition -- all of which would have to be reversed because it cannot work without the individual mandate.  He said,

"People's lives are affected by the lack of availability of health care, the in-affordability of health care, their inability to get health care because of pre-existing conditions ... I think the American people understand and I think that the justices should understand that in the absence of the individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care."

 And the third, very forceful point was about judicial activism.

"Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. . . .  And I just remind conservative commentators that for years what we have heard is that the biggest problem on the bench was judicial activism or a lack of judicial restraint; that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."

Precedent, the effect of reversal on human lives, and judicial activism.

I have to believe that at least one of the conservative bloc will be moved enough by such considerations to find a way to justify voting to uphold the law.   That's all it will take.   One conservative vote.   Kennedy?   Roberts?   Scalia could even still be a long shot, despite his obvious hostility to the law itself.  But if he acts on principle and is consistent with a prior vote of his, he should.

I would add what Obama couldn't afford to say:   If SCOTUS overturns ACA, there will be a good case to make that the court has become politicized.   If you add this to Bush vs Gore and Citizens United, you have a strong case.   Roberts, at any rate, is not likely to want that as the legacy of The Roberts Court.

The other consequence could be a strong boost for pushing forward for a tax-funded, universal, single-payer program -- or even the simplest form of that:   expand Medicare to everyone.   It's already set up, it works just fine (as long as the  doctor reimbursements are not too paltry and the regulations not too onerous)

Ralph