Quoting from this front page Wall Street Journal article which appeared this morning, “President Barack Obama predicted that the Supreme Court will uphold his signature health-care law, saying that overturning it would be a prime example of the judicial activism that conservatives have derided.”
Where to begin? Applying President Obama’s “legal” standard would be tantamount to abolishing the separation of powers doctrine embodied by the U.S. Constitution. As I recall from my high school civics class, a primary responsibility of the Supreme Court under the separation of powers doctrine is to determine whether a law is unconstitutional; when such a determination is made regarding ANY law passed by Congress, then the Supreme Court has the power and authority under the U.S. Constitution to strike that law down. Therefore, rendering judgment upon the constitutionality of the Patient Protection and Affordable Care Act (AKA “Obamacare”) by definition cannot possibly constitute judicial activism. Judicial activism occurs when judges act like a legislature rather than like a traditional court and create new law (as opposed to judging the constitutionality of existing law); Roe v. Wade (which legalized abortion in the United States back in 1973) is a prime example of judicial activism, but I digress.
As much as I would like for the Supreme Court to 1) strike down Obamacare and 2) replace Obamacare with my own preferred health care reform plan (see http://blog.garven.com/2009/08/27/my-preferred-approach-for-reforming-health-care for the details), step (1) is okay according to the U.S. Constitution, but clearly step (2) is not – step (2) falls under the authority of Congress. The whole point of the separation of powers doctrine is to ensure that the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. While President Obama (as well as any other citizen of the United States) is certainly entitled to his opinion about the constitutionality of Obamacare, it is really bad form for him to throw the Supreme Court under the bus just because it might have a different opinion and is doing its constitutionally mandated job.