'I am confident," announced the president of the United States, "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 so it was on Monday that Barack Obama, anticipating a loss before the Supreme Court, added the third branch of government to the list of villains he will run against in his re-election campaign.
Many are saying the president should know Marbury v. Madison. He does. It doesn't matter. If something gets in his way, Barack Obama hammers it—whether courts or Congress. The left likes that. It remains to find out if the rest of the country wants the judicial and legislative branches subordinated to a national leader.
Many schools of thought have emerged on the subject of why Barack Obama does some of the things he does, such as the job-killing Keystone XL pipeline decision or vilifying the Supreme Court justices seated before him at his State of the Union speech or inviting the GOP leadership to his speech on the deficit so he could insult them, and then hit them both again this week. Calculation? Intimidation? One school holds he acts out of personal belief (the school I subscribe to). Or that he polls it before he says it (also plausible).
It appears to be unprecedented, however, for a U.S. president to have attacked the Supreme Court before it handed down its decision. Some think Mr. Obama and his progressive infantry are trying to intimidate the Justices, specifically Justice Anthony Kennedy. But most legal commentary has said the president's attack is likely to anger the justices, perhaps including some of the court's liberals. Mr. Obama's notion of judicial review diminishes all the members of any court, not just its conservatives. It doesn't help the always difficult struggle for an independent judiciary in other countries if an American president is issuing Venezuela-like statements on U.S. courts.
Another possible explanation occurs. It's in one of the grandest moments in "The Wizard of Oz," when the Wizard, fumbling at the controls inside his throne room, shouts to Dorothy and the others: "Pay no attention to that man behind the curtain." Barack Obama, a wizard of another kind, has been trying with fulminations and denunciations to keep anyone from attempting what a law professor might call discovery of what the president actually has done in the past three years. We already know, for instance, that the stimulus's $825 billion went up the chimney. What else?
It was the Supreme Court's great debunker, Justice Antonin Scalia, who came closest in the ObamaCare oral arguments to pulling the curtain back on the Affordable Care Act's inner machinery. That was the moment when Justice Scalia asked: "What happened to the Eighth Amendment? You really want us to go through these 2,700 pages?"
Like the original wizard, Barack Obama doesn't want anyone to look behind the curtain.
The point beneath Justice Scalia's jest is this: The 2,700-page Affordable Care Act, the Obama presidency's policy masterpiece, at best won't work very well. At worst, its house-of-cards complexity will damage nearly anything it touches—citizens, doctors, medical institutions. One only has to venture inside the law's text to discover why, and to see why Justice Scalia wanted to protect impressionable law clerks from the experience.
Where better to begin than at the mandate itself. The mandate is the probable cause of the law's demise and so the source of the president's rage. In fact, the word "mandate," as argued before the court, appears nowhere in the ACA. What they were litigating was Subtitle F, Part I. Rather than "mandate," its Orwellian title is the "Individual Responsibility Requirement."
We already know that 67% of polled people think the mandate, which compels individuals to buy health insurance or pay a penalty, is unconstitutional. That number might go closer to 100% if people got a look at the law's language.
The ACA calls the act of purchasing insurance a "required contribution." Naturally, many will wonder if they can get out of this. That depends on the meaning of "required contribution," as defined in "Chapter 48—Maintenance of Minimum Essential Coverage, (e) Exemptions, (B) Required contributions:
"For purposes of this paragraph, the term 'required contribution' means . . .: (ii) in the case of an individual eligible only to purchase minimum essential coverage described in subsection (f)(1)(C), the annual premium for the lowest cost bronze plan available in the individual market through the Exchange in the State in the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan though the Exchange), reduced by the amount of the credit allowable under section 36B for the taxable year (determined as if the individual was covered by a qualified health plan offered through the Exchange for the entire taxable year)."
In the original "Oz," the wizard voluntarily abandons the yellow brick road, discovers humility and returns to earth. The ending in our version will require an election.