Tuesday, April 3, 2012

What Obama said about the Supreme Court and the ACA Case

There is a lot of overheated rhetoric about President Obama's remarks on the Supreme Court and the challenge to the Affordable Care Act aka Obamacare.  The no insurance penalty is taken as a deprivation of liberty on the right see, e,g, volokh.com.  The most hysterical (e.g. David Kopel) claim he is disputing the principle of judicial review.  Or distorting the notorious 1905 Lochner v. New York decision (which they actually love).  
Actually Obama was quite careful.  Lochner is a symbol of the line of Supreme Court cases that overturned economic regulations like child labor laws.  That era ended in 1935 with A.L.A. Schechter Poultry Corp. v. U.S. (1935).  I think he is correct that to overturn the individual mandate on the grounds that it is an interference with liberty  or beyond the reach of the commerce clause would in fact bring us back to the pre-1935 era.  
I think the President is careful in his remarks - affirming that we should not go back to the Lochner era, and that the court should defer to Congress, which indeed passed the ACA by a "strong majority" in the Senate (they had to overcome the filibuster abusers) and by a simple majority in the House.
Judge for yourself.
We are all constitutional actors: citizens, elected members of the executive branch, legislators, and judges.  We have - almost uniquely - given judges the last word in interpreting the constitution.  But that does not mean we have taken away the voices of legislators, presidents, governors, or citizens.  What we do ask is a decent respect for the opinions of others who respectfully disagree with us.  - gwc

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