The first time, it could be argued, was a charm. The date was April 2, 2012. The Supreme Court was in the midst of deliberations on the legality of the non-compliance penalty that was a key component of the Affordable Care Act. Barack Obama made a statement that was seen as an attempt to goad the court into approving this element, without which the law would collapse of its own weight. In his remarks, he said:
Ultimately, I’m 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’d just remind conservative commentators that for years what we’ve heard is, 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.
There is much in this paragraph that could be dismissed with a laugh if it were not coming from a man who promised an end to the political gamesmanship inside the Beltway and was a lecturer in Constitutional law at the University of Chicago. As it is stands, the claim of a “strong majority of a democratically elected Congress” is outrageous, as is his misapplication of the term “judicial activism.” The law, as everyone but Obama recollects, barely squeaked through — and then thanks only to a gross perversion of the nuclear option by a Democratic-led Congress. And the decision facing the high court is precisely the sorts of question it was devised to resolve under the Constitution. (Judicial activism, as Obama should know if he doesn’t, is the making of law from the bench, not ruling on a law’s legality.)
In any event, the Supreme Court rose above the president’s impudence in 2012 and ruled that the penalty was actually a tax, thereby saving the law and Obama’s legacy.
You’d think he might have learned some humility from this experience. Not a chance. Yesterday, during a press conference at the G7, he was asked about the latest challenge to the Affordable Care Act, on which the court is expected to rule any day now. Here is his answer, complete with testimonials from “not just Democrats” but “Republicans who worked on the legislation.” (It’s unclear which Republicans he was referring to since the law in its final form received zero Republican input and as many votes.)
What I can tell state leaders is, is that under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case. It has been well documented that those who passed this legislation never intended for folks who were going through the federal exchange not to have their citizens get subsidies. That’s not just the opinion of me; that’s not just the opinion of Democrats; that’s the opinion of the Republicans who worked on the legislation….
And under well-established statutory interpretation, approaches that have been repeatedly employed — not just by liberal, Democratic judges, but by conservative judges like some on the current Supreme Court — you interpret a statute based on what the intent and meaning and the overall structure of the statute provides for.
And so this should be an easy case. Frankly, it probably shouldn’t even have been taken up. And since we’re going to get a ruling pretty quick, I think it’s important for us to go ahead and assume that the Supreme Court is going to do what most legal scholars who’ve looked at this would expect them to do.
So it’s a bad idea. It’s not something that should be done based on a twisted interpretation of four words in — as we were reminded repeatedly — a couple-thousand-page piece of legislation.
In other words this is such an easy slam dunk for my side that the Supreme Court will easily vote my way, and if they don’t they not judged fairly and have twisted the meaning of the bill. It will be interesting to see when the court releases the ruling in a week or two if there was another coincidental change in votes.
The ironic footnote is that this “calling out” of the Supreme Court — itself without precedent — comes from a president who has abused executive privilege repeatedly, essentially making a mockery of the Constitution. Now he has the chutzpah to lecture the high court on “twisted interpretations” and calling the task ahead of them a “slam dunk.” He has the luxury of doing this, knowing that the court will do its job, even if he has so often failed and so miserably at his own.