THE BLOG

Will the Supreme Court Kill the Obama Health Care Reform Plan?

05/23/2010 05:12 am ET | Updated May 25, 2011
  • Rob Kall Host, Bottom-up Radio Show WNJC 1360, publisher, OpEdNews.com positivepsychology.net and Storycon.org

Is the right wing going for the jugular, setting up a Supreme Court slap-down of Obama and his crowning achievement?

As the healthcare reform legislation was signed, 13 state attorneys general proceeded to sue to stop the bill.

Filings have begun. The Idaho AG told Chris Matthews that he expected it will take 11-13 months to reach the Supreme court. By then, the Republicans may have enough people in the senate to block ANY appointee Obama designates.

The rogue five right wing radical extremists who are running the reputation of the Supreme Court into cesspool territory could decide on whether the congressional vote on Health Care goes into law.

photo and image processing by Rob Kall

A Dark, Forboding Supreme Court Building

They crowned George Bush president, brazenly violating separations of powers laws. They turned the US election system into a corporatocracy, corrupting the election process, perhaps irreparably. It may seem unlikely that the Supreme court would try to over-rule congress-- that it would go against the constitution's separation of powers rules. But the radical Supreme Court right wingers have already proven that they don't respect precedent or the constitution. Some of them, like Alito and Roberts, lied their way into their jobs, testifying they would not engage in legislation from the bench, that they would respect Stare Decisis. Some have called for their impeachment because of those lies -- not likely with Nancy Pelosi running the House.

I asked a few attorneys their take. Here's the question I presented to them:

I'm working on an article speculating that the Supreme Court could ultimately decide whether the Obama healthcare legislation is enacted.

Two state Attorney generals have already said they'll sue the government if it passes. After the activism we've already seen from the SCOTUS, it would not be beyond the imagination for them to accept the case, then rule that the process the Democratic congress used was unconstitutional -- since they seem to have no problem breaching the bounds of separation of powers. What's your take?

Michael Ratner, attorney and president of the Center for Constitutional Rights, one of the first attorneys to defend Guantanamo prisoners, replied:

I don't know the issue that well. But as bad as Roberts is and much of the court, the general rule is that they will not interfere in how the Congress conducts itself on these matters -- so I don't think such a suit would be successful.

I asked the same question of Marjorie Cohn, immediate past president of the National Lawyers Guild, and she replied, "The Court will strike down laws Congress passes but I doubt it would get involved in micromanaging how Congress does its business."

I countered with this question, "And would you have said the same thing before the SCOTUS handed Bush the presidency?"

Ratner replied, with his last remark, perhaps, being the most telling:

Not really the same taking on this health bill--assuming it passes-- would be a direct interference with how congress does its business and an intervention would be very unusual to say the least on that issue. But of course everything is up for grabs with this court.

To this, Cohn replied: "Bush v Gore was an anomaly and didn't involve getting into how Congress does its business. The AGs can file their suits but I doubt the Court will hear the case. I could be wrong."

I put the two questions, combined, to attorney Andrew Kreig, executive director of the Justice Integrity Project, who said:

I agree. Bush v gore is the new legal standard and there is scant fight in most of the so called liberals, who are really centrists.

Brent Budowski, pundit and former legislative staffer for Lloyd Bentsen, commented, in response to my speculation, "I would put a one in five possibility that they (SCOTUS) through out the mandate (required payment for insurance) as unconstitutional. They would just through out whatever they throw out and leave the rest, and the mandate is most vulnerable. With the current Supreme Court, it's always a crapshoot.

It's hard for some of these attorneys to imagine justices on the Supreme Court breaking precedent, breaking legal standards and even violating the constitution, but clearly, not entirely beyond the range of possibilities they consider.

Jane Hamsher reported to me, in an interview last week, that there were 36 challenges to the bill already. She told me that Virginia already passed a law, challenging the law, saying they would not abide by the mandate. Hamsher told me that challenging the bill is going to be the Gay Marriage of 2010. "

Hamsher's "Gay Marriage of 2010" take is a political one. But the right wing uses claws and fangs to go for the kill. They've used the five troglodyte majority they have on the Supreme Court to dismantle century old precedent. I think they'll try to castrate the Democratic congress's health reform bill -- they've been incredibly effective at making the Senate Democrats impotent already.

The movement of the right towards taking health reform to the Supreme court has already started with the lawsuits and laws passed challenging the legislation. This WILL be on the table, whether the Democrats like it or not, whether it has been done before, whether it is legal or not. The Roberts, Scalia, Thomas, Alito, Kennedy axis of right wing evil has shown they care not about precedent and are willing to re-draft huge volumes of the constitution. They have shown themselves to be willing and able to be dangerous to democracy and the separation of powers.

They have gone this way because Obama, Pelosi and the Democratic leaders have proven to be spineless in the face of high level crime and corruption. Alito should at least be questioned, with hearings held, considering impeachment, for lying to congress about his stare decesis intentions. It is not too late to visit the illegal actions of Bush appointees like Leura Canary and others in the DOJ. If the Democrats don't fight back hard, we will see the power the electorate endowed them with melt away. Power unused is not just power abdicated and thrown away. The failure to use Power given by the people is a betrayal of the people's faith and trust. When power is given and un-used the people have every reason not to trust those to who it was endowed.

The Democrats have a bit more than six months to find and use the power they were given. They must act and not react. They must strike boldly against the right wingers who have, so far, out-messaged them. They can do it, but it requires leadership that we have not yet seen. Obama, Reid and Pelosi must appoint political generals to engage in battle. It's not the health care bill at stake. It's an epochal change in the balance of power in America.