President lobbying the Court?
Stepping into the midst of the Supreme Court’s review of his most important domestic policy initiative, the federal new health care law, President Obama on Monday did a little lobbying, suggesting that the Court would be engaging in “judicial activism” if it struck down the key feature of the law. His remarks during a White House press conference with visiting foreign leaders were a reminder of the President’s criticism of the Justices — to their faces — over a major campaign finance ruling, during his State of the Union address to Congress two years ago.
If the Court does strike down the law or major parts of it, the President’s remarks at least hinted that he could use such a decision as a campaign issue as he seeks reelection in November. His remarks could remind the Justices that their coming ruling almost inevitably will draw the Court into the middle of this year’s politics, although the chances are that they already were well aware of that.
Often, when Presidents have been asked by reporters to comment on an issue pending before the courts, the response has been a reluctance to speak out while the issue remained in that forum. There was no such hesitancy from this President on Monday. He responded directly, and at length, to a reporter’s question about the prospect of the nullification of the health care law’s individual insurance mandate
Phrasing his response as if he were reacting to “conservative commentators” (although the reporter had not put the question in those terms), the President nevertheless was clear about what he thought would drive a decision against the new law. Here is how he put it:
“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.”
He said he was confident that the mandate would be upheld, and extolled its policy virtues. But he also made a direct pitch to the Justices. He said: “I think the American people understand, and I think the Justices should understand, that in the absence of the individual mandate, you cannot have a mechanism to secure that people with pre-existing conditions can actually get health care….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.”
In those terms, the President’s remarks echoed a closing argument that his Solicitor General, Donald B. Verrilli, Jr., had made to the Court last Wednesday afternoon as the Justices completed three days of hearings on constitutional challenges to the health care law’s individual mandate, as well as its expansion of the Medicaid program for the poor.
The Justices are free, of course, to ignore the arguments both of the President and of his Solicitor General. Only they will know, though, whether they thought it was appropriate for the President to give them a piece of legal and constitutional advice even as they were studying the issues. Some of the Justices are known to have resented it when the President in January 2010 told them what he thought about their controversial ruling in the case of Citizens United v. Federal Election Commission — a ruling that may have had something to do with the flow of huge volumes of money into this year’s presidential election campaign.