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PrintMarch 22, 2010
Is ObamaCare Headed for a Supreme Court Smackdown?
Now that the House Democrats have rammed ObamaCare down the throats of the nation by a vote of 219-212, the situation is indeed bleak. But Conservatives and Tea Partiers despondent over the fact that liberal Democrats just passed a massive encroachment on our liberties over their massive protests should take hope. James Madison saw this coming, and his forethought will give opponents of ObamaCare one last shot at killing it.
In Federalist #10, Madison wrote "Enlightened statesmen will not always be at the helm." (Boy, did he ever get THAT right.)
Knowing that the nation's future leaders would include usurpers and potential tyrants, Madison sought a way to preserve individual liberty despite their efforts. He thus devised the system of the separation of powers. "[E]ssential to the preservation of liberty..." he wrote in Federalist #51, "it is evident that each department should have a will of its own" and "members of each department should be as little dependent as possible" on the other branches.
Passage of legislation by Congress and the signature of the President are not enough. The next step is judicial review by the Supreme Court, an independent and co-equal branch of government. (Already the states of Idaho and Virginia have vowed to sue the Federal government over ObamaCare, and the passage of the legislation will doubtless spawn hundreds of other lawsuits as well).
Madison was a brilliant enough thinker to understand that the separation of powers relied on more than each branch having the "necessary constitutional means" to resist the others. The separation of powers provided each branch with the "personal motives" to "resist the encroachments of others."
"Ambition," wrote Madison, "must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the [branch]."
Thankfully, the Court has an axe to grind with Obama.
Remember the State of the Union Address? In January, Obama took a cheap shot at the Supreme Court's courageous decision in the Citizens United case, upholding free speech and overturning key provisions of the "McCain-Feingold" law. Congressional Democrats whooped and jeered at the Court like obnoxious schoolboys. The Court was humiliated. Justice Alito shook his head in disgust and muttered that the President's remarks were "not true." In March, Chief Justice Roberts told an audience at the University of Alabama that the behavior of the President and the Congressional Democrats was "very troubling," and questioned why the Supreme Court should even bother to attend a "political pep rally." Roberts' remarks caused the White House Press Secretary Robert Gibbs to issue a snarky rebuttal, again condemning the Court's decision.
It is quite likely that the "individual mandate" in ObamaCare requiring all Americans to purchase health insurance against their will is unconstitutional. But after the State of the Union dust-up, the Court has more than just technical legal motives to take up the case. Madison lamented that reliance on personal motives and ambitions "should be necessary to control the abuses of government" but understood that this was a "reflection on human nature."
I'm hoping that Madison's understanding of human nature was correct, and that Justices Alito and Roberts are chomping at the bit for the chance to get back at Obama and his Congressional goons for the humiliation they inflicted on the Court. A decision striking down ObamaCare, authored by Justice Alito, would be the ultimate smackdown.
