July 21, 2014 - Long Live the Court

This column was also published by Political Prospect.

While campaigning in 2007, Obama referred to himself as a University of Chicago constitutional law professor.  It should be noted that the University of Chicago classified Obama as a senior lecturer, and not as a professor, but facts do not seem important when running for office.  Not a lie – an embellishment.

Obama’s constitutional acumen is in question because the cornerstone of Obama’s legacy, Obamacare, may be dismantled by the Supreme Court of the United States in the coming years.  The first crumbling wall was revealed this month by the Hobby Lobby ruling.

A 2012 Supreme Court challenge to Obamacare, (National Federation of Independent Business v. Sebelius), was deemed, at the time, a vindication and victory by Obama.  However, when you review the ruling, Chief Justice John Roberts stated that the individual mandate could be upheld under the Constitution’s Commerce Clause by the power of the government to tax.  Justice Kennedy wrote in his dissent, that the administration “went to great lengths to structure the mandate as a penalty, not a tax.”  Not a lie – a semantic contortion.

Obamacare’s high wire walks around its constitutionality might be part of a master plan. The President sponsors a bill.  He pushes his sycophants to approve it without a single Republican vote.  Obama then allows the courts to sort out what is constitutional or not.  Obama may have crafted a flawed Obamacare law knowing it would take years for the courts to unravel the mess.  After all, as Nancy Pelosi eloquently offered, "We have to pass the bill to find out what is in it.”  Not a lie – a factual statement about the competency of our elected “leaders.”

The dockets of state and federal courts will be burdened for years with constitutional challenges to Obamacare.  They will extend beyond Obama’s currently constitutional mandate to leave office on January 20, 2017.  Obama's legacy might be the full employment of the judicial branch at the state and federal level.

Obama does have two well documented lies concerning Obamacare: “If you like your plan, you can keep it” and “If you like your doctor, you can keep him/her.”  The repercussions from these falsehoods probably have hurt any chance for the Democrats to control the House and possibly the Senate through 2016.  Even with possible 2014 congressional composition changes, the legislative branch will be unable to pass any changes or reforms to Obamacare without the threat of an Obama veto.

Obama may continue to take executive actions in relation to the implementation of Obamacare.  To date, there have been 23 delays and waivers.  None of these were approved by Congress.  This was the provocation that caused House Leader John Boehner to finally say enough, and sue the President for executive overreach.  No President should be above the law, nor should they be able to pick and choose which laws to adjust and enforce.

With the legislative and executive branches now constrained, Obama’s last hope to defend Obamacare might come full circle back through the judicial branch.

The Supreme Court’s current composition of 9 justices has 5 nominated by Republican presidents and 4 put in place by Democrat presidents. 

One tactic to change the court’s political direction was previously attempted by Franklin Roosevelt in 1937.  He wanted to expand the size of court beyond 9 justices in order to tilt the scales of “justice” in his favor.  Fortunately, we had an active Congress that stepped in and stopped that executive overreach.

The most likely scenario would be the untimely death or resignation of a “conservative” Supreme Court Justice.  John Grisham’s 1992 book “The Pelican Brief” fictionally chronicled the dual assassination of two Supreme Court Justices in order change the direction of the court.  There is a web site that offers a predictive model for the untimely death of a Supreme Court jurist.  There is a 64.08% chance, by 2017, of any of the nine current judges dying, which would allow Obama a chance to add another liberal-leaning vote.  The liberal judges are apparently in better health than their conservatives because their mortality percentage is at 32.85% compared to their conservative counterparts at 46.89%.   Not a lie – Statistic Probabilities.

This is a real concern, as Obama gave us Justices Sotomayor and Kagan.  It’s not an obscure theory to think that should Massachusetts’ own Native American Senator Elizabeth Warren decide not to run for a third Obama term, she would be a likely candidate to be a Supreme Court Justice.  The power of being one of nine is much greater than being one of one-hundred senators.  Additionally, Supreme Court Justices NEVER face re-election or recall.

Let’s hope for the continued good health of Justices Alito, Thomas, Roberts, Scalia, and yes, Kennedy.  Our country’s future may DEPEND on it.

Obama famously stated one REAL truth: “Elections Matter.”  The 2016 Presidential elections will be important, as the future direction of the Supreme Court could be determined.