Published for www.commentarymagazine.com, May 2012
For ObamaCare and its namesake, the period from March 26 through 28, 2012, will go down as three very bad days politically—and possibly as three epic days for our nation constitutionally.
The multiday argument in front of our nation’s highest court—which usually grants only one hour per case—exhibited various shortcomings and contradictions in the Affordable Care Act of 2010. In a previous analysis for Commentary (“ObamaCare and the Supreme Court,” February), I identified the four most likely scenarios for how the court will rule. First, it could overturn the individual mandate requiring all Americans to purchase private health insurance while maintaining the rest of the law. Second, it could overturn the law in its entirety due to the unconstitutionality of the individual mandate. Third, it could delay the decision until the individual mandate becomes applicable in 2014. Fourth, it could uphold the law in its entirety.
The latter two scenarios are the most preferable to liberals because they allow full implementation of the Obama health law to proceed apace. And it was precisely these two scenarios that became far less likely after the three days of argument before the Supreme Court.
It was an instructive three days, a civics lesson for a nation desperately in need of one; at the end of the argument, it was anyone’s guess how the court would come down. And yet the distinct possibility of a ruling unfavorable to ObamaCare caused the president himself to utter some astonishing words regarding the Supreme Court’s role only days after the argument was concluded. He suggested it would be “unprecedented” and “extraordinary” for “an unelected group of people” to find “a duly constituted and passed law” unconstitutional—as though that has not been the core role of the Supreme Court since the 1803 case of Marbury v. Madison, the most important judicial decision in American history, and one that our former constitutional law professor is surely aware of.