Randy Barnett: “On ObamaCare, Don’t Put Your Faith in the Courts”

Oh wait, that’s me.  I was noodling around on the Cato website looking for the video of my talk there on Monday when I came across this statement from March 31, 2010:

On ObamaCare, Don’t Put Your Faith in the Courts

Posted by Randy E. Barnett

Now that the Obama health plan is law, more than a dozen states are asserting that Congress has exceeded its Commerce Clause power in imposing a mandate on individuals to purchase health insurance from private companies. No doubt, individual citizens will challenge the individual mandate on their own behalf.

States are also asserting that the threat to withhold all Medicaid payments if the states do not set up health insurance exchanges and enact other regulations amounts to coercion and unconstitutional commandeering of states by the federal government.

No one who opposes ObamaCare should put their faith in the Supreme Court to strike down an act of Congress, no matter how unprecedented and unconstitutional it may be. Nor should those who support ObamaCare be confident that the Supreme Court will uphold these provisions.

Legal challenges cannot take the place of political action. The Court hates to strike down popular legislation, but if the legislation is unpopular, one or both houses of Congress have changed parties and only a filibuster or presidential veto is preventing repeal, then the Court may feel more comfortable upholding the Constitution.

There is a reason I never made a prediction on the outcome of the case.  I felt good about how oral argument went, and apparently we did well enough there to get 5 votes.  But you just cannot count on the Supreme Court to enforce the Constitution.  That is why my constitutional law casebook is dedicated:

To those whose vision of the Constitution is not limited to that of the Supreme Court

And if anyone is wondering if the outcome of this case still hurts, the answer is “yes.”  And it will for a very long time, unless Obamacare is repealed by Congress next year.  But, if there are two things you cannot count on to protect liberty more than the Supreme Court, it is Congress and the Republican Party.