Request for Clarification

by Dave Schuler on April 2, 2012

Can someone please explain the president’s most recent statement about the Supreme Court’s considering the constitutionality of the PPACA to me:

“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,” Obama said at a Rose Garden news conference.

On the surface he appears to be saying that overturning the law would be an extraordinary step because it was enacted into law by Congress. Surely, that can’t be right.

Just for the record the PPACA was passed by the Senate 60-39 and the House 219-212, in both instances, I believe, on a straight party line vote. “Strong majorities” aren’t what they used to be.

{ 8 comments… read them below or add one }

steve April 2, 2012 at 5:45 pm

It takes a very strong majority of Americans to vote in 60 senators so that you can pass legislation, especially if your Senators come from the under-represented larger states.

Steve

Andy April 2, 2012 at 6:14 pm

Heh. I guess the Senate is undemocratic except when it isn’t.

I think his comment might have two motivations. First, if part or all of the PPACA is declared unconstitutional then it will become a campaign issue. Secondly, it’s putting good face on a bad situation. An analogous situation would be how Nancy Pelosi remained completely (unrealistically) optimistic that Democrats would keep the house before the 2010 elections.

Dave Schuler April 2, 2012 at 7:27 pm

I’m not really concerned about the “democratically elected” part. I think that’s merely amusing.

The part that concerns me is the implicit notion that any law that Congress passes is, in fact, constitutional.

Andy April 2, 2012 at 7:35 pm

Dave,

I don’t get that notion based on the full context of his remarks. He’s arguing precedent and lower court ruling, among others, in addition to the fact that it passed Congress.

Dave Schuler April 2, 2012 at 9:23 pm

Here’s the entire relevant portion of the interview:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important — because I watched some of the commentary last week — to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that’s already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don’t have to worry about their children not being able to get health care because they can’t be prevented from getting health care as a consequence of a preexisting condition. That’s part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that’s just the part that’s already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.

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. And 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.

As I understand things the Court will determine whether there is relevant precedent or, as the law’s critics contend, the individual mandate is unprecedented. If it is indeed unprecedented, the president’s other two arguments, a) that the remainder of the law won’t work without the individual mandate and b) that it was passed by the Congress are beside the point unless, it seems to me, you believe that Congress has the power to enact any law as “necessary and proper” that it sees fit to accomplish an objective it sees as desireable. I don’t believe that’s the meaning of “necessary and proper”.

sam April 3, 2012 at 5:57 am

Dave, Orin Kerr addresses just this point in President Obama’s Comment About The Health Care Case. He suggests one consult the video and not the transcript:

In his post below, my co-blogger David Kopel excerpts one sentence of the speech — the one in which Obama said “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” — and he interprets it as advocating a new and novel theory of judicial review. According to David, Obama was advocating a remarkable new theory that judicial review does not exist for federal statutes passed with a “strong majority” of members of Congress.
But this strikes me as a rather obvious misinterpretation of what Obama said. If you’re not convinced, watch the video of this part of Obama’s statement: [video].

Obama was pausing repeatedly and looking for the right word, and the delay in time it took for that sentence to come out makes clear that Obama is making two distinct points in that sentence. The first point is that he’s confident that the Supreme Court will not take the unprecedented and extraordinary step of striking down the ACA; and the second point was that the ACA was passed by a strong majority of a democratically elected Congress. Again, one can disagree with these characterizations — the “strong majority” line seems particularly puzzling. And it’s a terribly inarticulate sentence, which Obama seems to realize as he’s speaking (note the pauses and rather pained facial expressions as he tries to get the sentence out). But I don’t think it’s remotely plausible to read that passing statement as advocating a new theory of judicial review.

steve April 3, 2012 at 6:30 am

Yes, I read Volokh last night and watched the video. Sam, and Kerr, have it right. In particular, note the transition as he talks about how this is not an abstract argument. He then goes on to talk about how the law will affect people, or its being overturned. Of note, they also talked about some of these same things at the oral presentations.

Steve

Dave Schuler April 3, 2012 at 6:34 am

My questions were based on the WP article and then the transcript and, like David Kopel, I found the president’s reasoning, as presented in writing, odd.

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