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Adam Winkler

Adam Winkler

Posted: December 13, 2010 08:19 PM

Monday's federal court decision declaring key provisions of the health care law unconstitutional was not just a major setback for President Obama's signature piece of legislation. It was also a reminder that the courts are an even greater threat to his agenda than the new Republican majority in the House.

Crucially, it was a wake-up call for the president to jump-start his stalled judicial nomination process.

John Boehner talks about repealing the Affordable Care Act or using the power of the purse to defund the law. Yet any piece of legislation undermining health care reform that makes it through the House will stall in the Democratic-controlled Senate or face a certain veto in the Oval Office.

But judicial decisions don't face the same hurdles, as Monday's ruling shows. Even though there are good arguments for the constitutionality of the health care reform law -- which led two other federal courts to uphold the bill in earlier cases -- the law faces an uncertain future in the courts.

The most controversial feature of the law is the "individual mandate" which requires individuals to have health insurance, even if they have to purchase insurance they'd prefer not to have. Critics of the law claim the mandate is unprecedented, but even the Founders had something just like it. In 1792, the Founders enacted the Militia Acts, which required every white male of age to outfit himself with a military-style firearm, even if some people forced to buy a gun preferred not to own one. Other individual mandates in current federal law include mandatory jury service, filing of tax returns, and selective service registration.

Yet even if there's ample precedent for an individual mandate, the Supreme Court under the leadership of Chief Justice John Roberts could use decisions like the one by a lower court Monday to overturn the landmark health care law. Republicans may get from the relatively conservative Supreme Court what they can't obtain in Congress.

This dynamic is not limited to health care. The courts are hearing cases -- or are certain to do so in the coming months -- on many issues important to the administration, from immigration policy and Internet regulation to airport security screening and treatment of terrorists. Bills recently signed by the president on child nutrition and animal cruelty videos will also likely be challenged.

The courts have even been giving the president a hard time on Don't Ask, Don't Tell, striking it down against his wishes. He wants to reverse the policy, but through Congress not judicial fiat -- or at least that's what he says publicly.

While the courts turn aggressive, the president seems passive. Obama has been historically slow in sending judicial nominations to the Senate for confirmation. This despite the fact that nearly 1 in 8 federal judgeships currently sits vacant, and even conservative, Republican-appointed judges call the situation a crisis significantly harming the federal judiciary.

The fault is hardly the president's alone. Although the Senate Judiciary Committee has acted with relative speed in pushing nominees through it's hearings, few nominations are being brought to the floor for a vote. Republicans are using procedural techniques to stall the process. Still, this is a Democratic controlled Senate and other presidents have found ways to gain confirmation votes even when the opposition is control.

Monday's ruling only underscores how important the judiciary is to Obama's agenda. Many of his major accomplishments as president will end up in the courts. If Obama doesn't act soon to push through his judicial nominees, those courts will be presided over by judges selected largely by previous presidents, like George W. Bush, rather than judges he had the chance to name to the bench.

 

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