Obama Sets a Chilling Tone

(Chris Kleponis/Bloomberg / April 2, 2012)

President Obama spoke out Monday regarding the United States Supreme Court’s (USSCT) hearing of oral arguments to review and rule on the constitutionality of Obama’s signature piece of legislation, the Affordable Health Care Act.  In his remarks, he said,

“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.  I just remind conservative commentators that for years we have heard 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 am pretty confident that this Court will recognize that and not take that step,”

 This is a confusing and alarming statement made by the President, since his background is in the law. If the President made these remarks, knowledgeable of the foundation of our country then we should be alarmed at the blatant disregard he shows for the structure and divided power of our government.
Our Constitutional Government
3 Branches of Government
The founding fathers, in the Constitution, split federal power between three branches of government, each with unique Constitutional authority and powers to act as a check on the power of the others. The Legislature writes and passes the laws; the Executive enforces the laws; and the Judicial branch reviews and rules on the Constitutionality of the laws.  As set out in the Constitution, the President, with Senatorial review, appoints federal judges and justices for life.
There are many instances throughout the history of the US of the federal courts, including the USSCT ruling a federal law unconstitutional. For the President to suggest that his signature piece of legislation is above judicial review by the Supreme Court is at the height of hubris. No federal law, short of an Amendment to the Constitution itself is above a review by the Supreme Court.
Expansion of Federal Power
Although we won’t know the Justices decision until June, reading through questions asked by the Justices during the three days of oral argument last week before the court, you are left with the impression that certain Justices are uncomfortable with the expansion of power given to the federal government under this law.
 Justice Kennedy, commonly considered the swing vote on close 5-4 decisions, stated…

But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act… And 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 and that changes the relationship of the Federal Government to the individual in the very fundamental way.

Several justices also appeared to be concerned in their questioning about a lack of limit to the expanded federal power sought by the Solicitor General for the United States through the Commerce Clause. Arguably, this Healthcare law assigns the federal government the power to force an individual to act under the Commerce Clause.  Previous precedent holds that the government can restrict or regulate an individual actions, but has never required an individual to take action simply for residing in the country.  To uphold this law would fundamentally change the role of the federal government to the individual.  
Mandate for Car Insurance vs. Health Insurance
The great fallacy in the comparison of a mandate of car insurance to a mandate of health insurance is the fact that before you are required to purchase auto insurance, the individual must first purchase a car to drive on public roads. This action – initiated by the individual – can be regulated by the government. You are not required to purchase car insurance if you do not own or drive a car.  However, in this law, the Government initiates the action – requiring the individual to purchase something for no other reason that being alive and living in this country.
Lack of a Severability Clause
Unfortunately for the President and the supporters of the Healthcare law, the Democrat Senators removed the severability clause present in almost all legislation.  This clause, when present, provides that if one section of the law is found unconstitutional, that section may be severed and the remainder of the law may stand.  Without this severability clause, the entire Healthcare legislation must be struck down if any part of it is found to be unconstitutional in nature. 
Judicial Activism vs. Judicial Review
United States Supreme Court
The term judicial activism applies when judges or justices create or expand a new law or assign rights not previously found in precedent or in the Constitution.  President Obama is attempting to confuse voters by calling the normal act of judicial review by the misnomer of judicial activism.  The argument before the Supreme Court is that the Obama Healthcare law expands the power and role of the federal government.  Judicial Review is when the Supreme Court reviews the law passed by Congress and signed by the President.  If they determine that the power assigned in the law is not present in the US Constitution, they are requiredto rule against and strike down the law.  Judicial Activism occurs if the Supreme Court reviews the law, determines the power assigned is not in the US Constitution, yet makes an exception or believes we should have this power, and upholds the law.
A Chilling Tone
These intellectually dishonest comments, along with President Obama’s public condemnation of the Supreme Court during his 2010 State of the Union address, set a chilling tone of deep disrespect for our great nation as it was founded.