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What President Obama Should Have Said About the Supreme Court and the Affordable Care Act

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The president has been criticized by some for his alleged attacks on the Supreme Court, and he was ordered to explain his remarks by the Fifth Circuit Court of Appeals. The president's remarks weren't entirely accurate, though the reaction has been vastly overblown. Contrary to what conservatives are saying, President Obama did not go far enough. Here is what he should have said:

My fellow Americans:

The United States Constitution expressly gives Congress the authority, in Article I, to regulate commerce "among the several states." As far back as 1824, the Supreme Court held that the Congress has full power regulate commerce "that concerns more states than one." Almost 200 years later, Justice Scalia wrote that the Congress has the power to regulate "even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce." In the years between 1824, and 2005, with very few exceptions, the Supreme Court consistently deferred to Congress when the legislative branch tried to solve national economic problems. These precedents are not mine, nor did they come from prior presidents or prior Congresses, but from the Supreme Court itself.

I do not deny that the Supreme Court has the power to overturn acts of Congress that the Court believes are unconstitutional. That the Court has this power, however, does not mean that it always exercises it wisely or in conformity with the Constitution. It is my job as president, and Congress' job as the nation's lawmaker, to also act in accordance with the Constitution. No Supreme Court case has ever said that the Court has a monopoly on the power to interpret the Constitution.

The Affordable Care Act undoubtedly is a law regulating economic activities that affect more states than one. Decisions by Americans whether to buy health insurance or not, for how much and under what conditions, substantially affect the American economy. People may reasonably disagree over whether the mandate is a good or bad idea (I think it is good), but the Court's job is not to decide the best health care policy but to rule on whether a law enacted by Congress violates the text of the Constitution. Although Congress is not allowed to regulate commerce by enacting laws that abridge freedom of speech or religion, or any other textual limitation actually in the Constitution, there is simply nothing in the Constitution preventing Congress from using mandates when exercising the commerce power. If the Court makes up that limitation out of thin air, it will be engaging in an improper exercise of the power of judicial review.

Prior cases by the Supreme Court, most of them unanimously joined by Justices appointed by both Republican and Democratic presidents, clearly support the constitutionality of the ACA. The Court has allowed Congress, among many other examples, to regulate the amount of wheat a farmer may grow on his farm for personal purposes, the types of customers small restaurants are obligated to serve, loan sharking by small time hoods, and the private growing of marijuana never bought or sold and permissible under state law. You might not agree that Congress should have passed all of these laws, but it is Congress, not the Court, that gets to regulate commerce. After all, members of Congress can be voted out of office but the Justices serve for life.

No one believes more than I do that the Court must at times exercise the power of judicial review and strike down laws that violate the Constitution. But that does not mean that I can't suggest that the exercise of that power in a given instance would be a grave mistake for our country. Challenging the wisdom of judicial interference is not the same thing as challenging the core idea of judicial review.

The problems raised by health care in this country are complex and not easy to solve. We certainly have more work to do. The individual mandate (which makes possible other important aspects of the Affordable Care Act), represents the elected branches' best effort to begin to tackle this national crisis. If you don't agree with that response, that is what elections are for.

The Supreme Court's job is to determine whether Congress' efforts to regulate health care satisfy the grant of power in the Constitution to regulate commerce "among the several states." The answer from prior cases and constitutional text should be obvious. A Court decision to overturn the mandate would be inconsistent with precedent dating all the way back to 1824, and would represent an effort by the Justices to inject themselves into the political and policy debates surrounding our health care problems. For the sake of all Americans, I hope the Court resists that temptation.

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