Meanwhile, in the wake of last week's war of words involving all three branches of our representative form of government over the role of the judiciary, again, it's time to dial it back.
Days after oral arguments concluded in the challenges to the Patient Protection and Affordable Care Act, and apparently in an effort to blunt the conventional wisdom that the government—and the prognosis for the ACA—took a beating at the hands of the justices, President Barack Obama took some swings at the high court.
At a gathering of news editors last week, the president aggressively defended the ACA and warned the justices against overreaching in their ruling expected in June, noting he was “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.”
Senate Minority Leader Mitch McConnell (R-Ky.) was quick to pounce, countering that Obama's “attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”
Later in the week, a federal appeals court judge in Texas also got into the act. U.S. Circuit Judge Jerry Edwin Smith, apparently in reaction to Obama's earlier statements about the Supreme Court, ordered the U.S. Justice Department to file a three-page, single-spaced letter within two days explaining the administration's views on judicial authority involving constitutional questions.
Charles Fried, who served as U.S. solicitor general during the Reagan administration and now teaches law at Harvard, said in response: “The idea of a judge, in a completely irrelevant way, ordering the attorney general to write an essay like an errant school boy has to write ‘I will not be late to class' a thousand times on the blackboard is unbelievable,” he told ABC News. “It just shows how terribly partisan and completely off base our political discourse has become.”
No argument here.
What really needs to happen, and indeed will, is that between now and June, before the justices issue their decision, and certainly between that day and until the November elections, this legal case will continue to be adjudicated, but in the court of public opinion.
Sure, critics of the ACA will say that court ruled a long time ago, citing how “wildly unpopular” the law has been from the start. That's true, but only if you believe certain polls. Other surveys have shown that it's always been more complicated than that, with some of the law's provisions gaining strong support.
This time the voting public will have to decide just who has been more “activist” when it comes to our healthcare system. If the high court overturns parts of the law or its entirety, what's Plan B, either from the current Obama administration or the victor in November? And if the law is upheld, who will pay the price at the polls?
Of course in the presidential race, it looks as if the choice is going to be Obamacare or Romneycare. Good luck parsing that one.
-David May Assistant Managing Editor/Features