Article III Section II of the US Constitution created the Supreme Court and reads in part:
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States…”
Yesterday, Obama 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,” Obama said at a news conference with the leaders of Canada and Mexico.
“And I’d just remind conservative commentators that, for years, what we have 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,” Obama said.
First and foremost, let’s consider the way that the “Affordable Health Care Act” was passed. It was done outside of the normal process of most bills of this magnitude. Ordinarily, the Senate and House create separate bills, make changes and amendments to each respective bill and send the two products to a committee to work out the differences in the two bills and combine them into one. It is in this process that errors, wording and even unconstitutional aspects of the bills are fixed. The resulting single bill then returns to each body for a final vote. Any additional amendments or changes will require the approval of both houses. And if approved, the final bill goes to the President for his signature (or veto).
But something happened in this process that turned the normal procedures on their head. Senator Kennedy passed away and was replaced by a Republican, Scott Brown, who ran on defeating Obamacare. The Senate had already passed their version of the bill, written by Harry Reid. The House passed a version, but the normal procedure of sending the two bills through a committee to work out the differences was now dead because the Senate Democrats no longer had a filibuster proof majority with the election of Brown. So they scrapped the House version of a health care bill and simply voted on the flawed Senate bill in the House. Initially, Speaker Nancy Pelosi planned to use a controversial procedure called “deem and pass” without even voting on the bill! In the end, Pelosi managed to bribe, threaten or bully just enough Democrats to pass the Senate bill.
There were no Republican votes in favor of this bill. And this bill bypassed the normal legislative process. There has never been a bill passed by Congress with less integrity of process and honesty of purpose than the “Affordable Health Care Act”. Period!
So for Obama to pretend that this bill was an ordinary bill passed in the normal course of business using the due diligence normally utilized by Congress is absurd. This bill was an abomination of the process and was passed by hook and crook in full panic mode as the window of opportunity was rapidly closing on the Democratic Super Majority. The American People, in fact, had recalled the Super Majority for abuse of power by electing Scott Brown to replace Teddy Kennedy in the bluest of blue states, Massachusetts.
And for Obama to have the nerve to “remind” conservative commentators of their disdain for “judicial activism” is laughable. Conservatives consider judicial activism to be judges who ignore the Constitution and allow their ideology to decide a case. Should the Supreme Court decide that all or parts of this law are unconstitutional, it will be based on the merits of the arguments and the US Constitution. That is not judicial activism.
And for an Administration that has filed lawsuits against states in unprecedented numbers, who depends on “judicial activism” and legislation from the bench to thwart the 10th Amendment, calling out those who question the constitutionality of a law that was at best a bastardization of process is ridiculously hypocritical.
Should this law be upheld by the Supreme Court, the expense and intrusion of the law will be the least of America’s worries. This would set a precedent that would essentially make any and all bills passed by Congress and signed by the President claiming authority under the Commerce Clause completely unchallengeable. It would remove all limits set by the Constitution on the Federal Government and render the Supreme Court impotent on future decisions on the Constitutionality of laws passed by Congress.
Upholding Obamacare would be the ultimate and final act of Judicial Activism on a scale that would render the US Constitution moot and the power of the Federal Government supreme forever.