Politico reported this morning that Morgan Freeman donated $1 million to the pro-Obama super PAC Priorities USA last month. The organization has reportedly been struggling to drum up donors, which isn’t surprising as Democrats have spent the past two years demonizing super PACs. Clearly, they hope Freeman’s donation will signal to wealthy liberals that it’s okay to support these groups.
But note Freeman’s statement out this morning:
“Pres. Obama has done a remarkable job in historically difficult circumstances. … I am proud to lend my voice … to those who defend him. Priorities USA Action is doing a great job of protecting the values I believe in. I am happy to help them and I hope others will join me.”
He wasn’t defending his donation as a necessary evil. Instead, he said he was “proud to lend [his] voice.” That’s an interesting choice in wording, considering Democrats have been mocking the idea that political spending is protected speech for the last two years.
But Freeman is right, and the Supreme Court has affirmed it. Political spending is a form of free expression. As Justice Antonin Scalia explained eloquently to CNN’s Piers Morgan last night, “You can’t separate speech from the money that facilitates the speech.”
Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?
A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.
Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.
Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.
While the country waits for the Supreme Court’s decision on ObamaCare, we invite readers to enjoy Tevi Troy’s recent series of COMMENTARY articles on American healthcare and its political and legal journey. Troy, a former deputy secretary of Health and Human Services, begins the incisive series with April 2010’s “Health Care: A Two-Decade Blunder,” explaining how the issue first became so highly politicized, and ends with May 2012’s “Three Days that Shook ObamaCare,” detailing the pivotal Court arguments that took place in March. The articles make for a comprehensive resource on this pivotal national issue and, moreover, they’re all great reads. See links below.
The biggest news out of the Supreme Court today is its decision on the Arizona immigration law, but it also handed a victory to supporters of Citizens United by knocking down a Montana law banning in-state corporate political spending. WSJ reports:
The U.S. Supreme Court has issued a summary reversal of the Montana Supreme Court’s decision to uphold a state law that prohibited corporate spending in state elections. The U.S. Court said the question in this case was whether the Citizens United decision, which established that corporate spending in elections is permitted as a matter of free speech, applied to the Montana state law. “There can be no serious doubt that it does,” the Court wrote.
Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.
For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.
On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.
We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:
Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”
My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.
Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.
“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”
The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.
A popular argument lately has been if the Supreme Court overturns ObamaCare, it will actually be disastrous for Republicans by taking away a major motivating force that would have driven voters to the polls in November. That’s hard to believe. Voters routinely cite jobs and the economy as the top issues that influence their votes, with health care trailing well behind. Those who do list health care as a key voting priority are actually more likely to support Obama. Not to mention, anyone who was planning to vote based on their opposition to ObamaCare would likely be attracted to the GOP’s broader economic vision as well.
Democrats have by far the most to lose if the law is struck down, and their response will be hugely important. In the WSJ today, Karl Rove outlines the best case Obama can make if his signature legislative achievement is overturned:
If the court moves to invalidate part or all of the Affordable Care Act, what matters most politically is Mr. Obama’s response.
The president could pivot to the center and regain some of the high ground he occupied in his 2008 campaign. He could say that while he disagreed with the court’s decision, the justices had the responsibility under our system to decide whether the law was constitutional. Everyone needs to respect and accept the verdict.
He could then add that a big problem remains: Tens of millions of our fellow citizens lack affordable health insurance. Now it is the responsibility of Republicans and Democrats, liberals and conservatives to come together and provide access to coverage. And the president could offer proposals to do that.
A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”
Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.
Ever since the Supreme Court listened to oral arguments about the constitutionality of Obamacare, the administration and its supporters have been doing everything in their power to influence the justices to leave the president’s signature legislative achievement in place. In particular, Chief Justice Roberts and other conservatives have received not-so-subtle hints that their legacies will be judged by whether or not they allow the law to stand. I doubt that Roberts cares very much about the opinion of the president or the New York Times, but there is a school of thought that wonders about whether Justice Kennedy — the quintessential swing voter on the court — might be influenced in that fashion. However, there is the old axiom that the Supreme Court follows the election returns.
Historically, the court has, after its own fashion, validated that observation, often granting its judicial seal of approval to certain trends only after they have seen the advocates of constitutional positions triumph at the polls. The problem with this is the people can change their minds every two or four years, but once the court settles on an opinion it can be set in stone for a generation or more. Thus, it is with no small interest that we look at polls about the constitutionality of ObamaCare, a decision on which will be handed down within weeks. Rasmussen’s new poll shows that a solid 55-39 percent majority favors its repeal. Virtually every poll taken on the issue in the last two years has gotten more or less the same result. This means that if the court does strike the law down, it will not only be restoring a sense of limits to the power of the government to use the Commerce Clause to justify any conceivable expansion of federal power, it will also be following the will of the people.
The White House is still feeling heat from President Obama’s comments suggesting it would be “unprecedented” for the Supreme Court to overturn a law passed by Congress. And much of it has to do with the fact that the media is actually doing its job and calling the president out on his falsehoods:
During robust questioning when [White House Press Secretary Jay] Carney was told at one point that he had mischaracterized what the president had said, the press secretary was forced to repeatedly defend the remarks of his boss as an observation of fact.
“Since the 1930s the Supreme Court has without exception deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as health care, 80 years,” Carney said.
“He did not mean and did not suggest that … it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do,” Carney said.
Is this the week the Obama administration’s remarkable incompetence begins to be the narrative? If so, he’s toast.
The president’s astonishing, not to mention indefensible, lecture to the Supreme Court this week, in which he turned 200 years of American constitutional history on its head, has been the talk of the blogosphere. But it’s not just the fact that he pretends to have not heard of Marbury v. Madison, it’s the anger behind his remarks that he is having trouble concealing. Even his old professor at Harvard felt he had to weigh in.
John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.
The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.
It’s no secret, and it’s no surprise, that liberal commentators have become enraged at the conservative members of the Supreme Court, who exposed the Patient Protection and Affordable Care Act as an unconstitutional and unholy mess in last week’s oral arguments. It would be a full-time job keeping track of the invective. But one person does deserve special mention: Maureen Dowd of the New York Times.
In her column, she says of the current Court, “It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”
An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.
CBS News reports:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.
In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”
Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.
Between now and the Supreme Court’s ruling on Obamacare in June, we’re sure to see a lot of these attacks on the supposedly activist conservative court. The Wall Street Journal editorial board did a good job yesterday skewering the idea that overturning the mandate would be an example of judicial activism, but if the court strikes down the mandate or full law as many have speculated, the “activist” argument is really the only card the Democrats can play.
Rep. James Clyburn (D-S.C.) said President Obama should campaign against the Supreme Court, painting it as a conservative, activist institution if it rules that the administration’s healthcare law is unconstitutional.
“In terms of the Congress, I believe that it would be off-base for us to do that, but for the president, I don’t think it is,” Clyburn said on MSNBC’s “Morning Joe” on Monday. “I think the president ought to take a look at what happened in years before — we’ve seen presidents run against Congress and we’ve seen presidents run against the Supreme Court. Franklin Roosevelt did it to the Supreme Court; [Harry] Truman did it to the Congress.”
These comments from James Carville are a testament to how shaken Democrats are after yesterday’s health care arguments, which didn’t appear to bode well for the administration. The political strategist told CNN that SCOTUS overturning Obama’s health care law would be the “best thing” that could ever happen to the Democratic Party. Right. Because having the president’s only noteworthy achievement invalidated about five months before his reelection is a sure recipe for political success.
“I think that this will be the best thing that ever happens to the Democratic party because health care costs are gonna escalate unbelievably,” Carville told CNN’s Wolf Blitzer of a possible Supreme Court decision to strike down the law. “I honestly believe this, this is not spin.”
“You know what the Democrats are going to say – and it is completely justified: ‘We tried, we did something, go see a 5-4 Supreme Court majority,’” Carville added. “The public has these guys figured out. Our polls show that half think this whole thing is political.”
“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5-4 and then the Republican Party will own the health care system for the foreseeable future. And I really believe that. That is not spin,” Carville said.
Jonathan Tobin makes a valuable point about the Zivotofsky case: the law giving Americans born in Jerusalem the right, if they want, to have the State Department put “Israel” on their passports as their place of birth reflects the fact the American people, through their elected representatives, have long recognized Jerusalem as the capital of Israel. The idea that American foreign policy would be adversely affected by letting Zivotofsky put “Israel” on his own passport is not a cogent thought.
Chief Justice Roberts’ masterful opinion (which attracted eight votes) provides a way out of the corner into which the administration has painted itself. Because the case will now return to the lower courts for further proceedings, the administration has an opportunity to reflect further on its legal strategy. There is a way in which everyone could win without further litigation – assuming President Obama is willing to learn from what President Clinton did in a similar situation.
The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:
The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.
Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.
According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”
“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.