President Obama’s Comment About The Health Care Case

Orin Kerr • April 3, 2012 2:29 am

In a press conference today with the President of Mexico and the Prime Minister of Canada, President Obama was asked the following question by a reporter:

After last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who’ve become insured as a result of the law?

President Obama responded, in relevant part:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.
. . .
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Taken in context, President Obama’s statement strikes me as pretty much what you’d expect a politician to say in such circumstances. He’s confident that his side will win because he has the precedents on his side. He’s confident his side will win because it would be an example of judicial activism to strike it down, which conservatives are supposed to oppose. One can of course question the President’s characterizations. One obvious mischaracterization is Obama’s statement that “two very conservative appellate court justices . . . said this wasn’t even a close case.” Assuming that refers to Judges Sutton and Silberman, I don’t think that’s a fair characterization of their opinions (especially Sutton’s, which struggled openly with the question). And other statements strike me as debatable, too. At the same time, these strike me as the kind of minor mischaracterizations that are so common in political life as to not merit much attention.

Is it strange that a President would discuss a pending Supreme Court case during a press conference? I haven’t checked the archives for past examples, but it does seem rather unusual. At the same time, it’s also unusual for the Supreme Court to hold six hours of oral argument to consider striking down the signature legislative achievement of a sitting president who is a former professor of constitutional law. As David Bernstein once noted, Obama has “thought a lot about constitutional history.” Presumably he has strong views about the mandate litigation. I don’t know if it was politically wise to make those comments, but I suppose I can understand why a former con law professor would find it hard to pass up the opportunity.

In his post below, my co-blogger David Kopel excerpts one sentence of the speech — the one in which Obama said “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress” — and he interprets it as advocating a new and novel theory of judicial review. According to David, Obama was advocating a remarkable new theory that judicial review does not exist for federal statutes passed with a “strong majority” of members of Congress.

But this strikes me as a rather obvious misinterpretation of what Obama said. If you’re not convinced, watch the video of this part of Obama’s statement:



Obama was pausing repeatedly and looking for the right word, and the delay in time it took for that sentence to come out makes clear that Obama is making two distinct points in that sentence. The first point is that he’s confident that the Supreme Court will not take the unprecedented and extraordinary step of striking down the ACA; and the second point was that the ACA was passed by a strong majority of a democratically elected Congress. Again, one can disagree with these characterizations — the “strong majority” line seems particularly puzzling. And it’s a terribly inarticulate sentence, which Obama seems to realize as he’s speaking (note the pauses and rather pained facial expressions as he tries to get the sentence out). But I don’t think it’s remotely plausible to read that passing statement as advocating a new theory of judicial review.