President Barack Obama may be eager to run for re-election against the U.S. Supreme Court over his health care law, but he should at least wait until the court rules.
The nine justices spent three days in late March hearing both sides of a case brought by attorneys general in 26 states, including Maine, challenging the law.
The states challenged the government’s position that the Constitution’s commerce clause allows Congress to penalize people for not buying insurance.
Opponents say the law doesn’t just regulate commerce, it forces people who had no intention of doing so to engage in commerce.
The conservatives on the court grilled the government’s lawyer, who mysteriously seemed unprepared for their questions.
The tone of the discussion led many to conclude that a majority of justices would strike down all or part of the law.
But what the public sees in court is only the beginning of a long process as justices research issues and try to persuade their peers on the bench to accept their positions.
Justice Anthony Kennedy is seen as a possible swing, and Chief Justice John Roberts seemed more open-minded than the three more predictable conservatives on the court.
The court has been known to defy expectations.
In the meantime, Obama has been lecturing the court from the campaign trail against taking “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
The “strong majority” comment is outright fiction. The health care law passed the U.S. House 219- 212, without a single Republican vote, and even 34 Democrats voted against it.
Second, striking down a narrow part of the law would not be unprecedented.
Government lawyers have often tried stretching the commerce clause, which gives Congress the power to regulate interstate commerce, and their efforts have been rejected.
Former President Bill Clinton’s legal team once argued that possessing a gun in a school constitutes an economic activity. Later, the government argued that violence against women fell under interstate commerce.
The court rejected both arguments.
The question before the court this time is even more legitimate: Can Congress compel people to engage in commerce that it then intends to regulate?
The opposite argument is that nearly all of us will need health care, and engage in commerce, at some point in our lives.
Like Republicans first did in the 1980s, we have supported the health insurance mandate on very practical grounds: The vast majority of people with insurance end up paying the bills of those who do not have it.
Health insurance isn’t like fire or flood insurance. Choose not to buy those, and you are homeless when the house burns or floods.
But we have decided as a civil society to treat everyone who shows up at a hospital. The critically ill car crash victim cannot be denied care.
In effect, we are all covered by a form of insurance that guarantees us lifesaving care.
If we are covered, then, to the best of our abilities, we should be required to pay something, if only a nominal amount.
The court, of course, may disagree. But until it does, Obama should let up on the demeaning lectures.
The opinions expressed in this column reflect the views of the ownership and editorial board.