Obama taps conservative line in health care battle

It may be too little too late, but the Obama administration is leveraging conservative legal ideas to win support from Supreme Court justices -- and the general public -- for its signature health care law.
President Barack Obama last week predicted the Supreme Court would uphold the controversial law as constitutional, saying the justices would not take the "unprecedented, extraordinary step" of dumping a law approved by a "democratically elected Congress." Obama even invoked the conservative mantra on "judicial restraint" and "judicial activism," and how conservatives traditionally decry "an unelected group" of judges overturning "a duly constituted and passed law." Obama's comments evoked a demand by a judge on the Fifth Circuit Court of Appeals in New Orleans that the administration submit a memo to the court on whether the administration believes that federal courts can review legislative action.
Attorney General Eric Holder complied and filed a report confirming that courts have that power. "There is no dispute that courts properly review the constitutionality of acts of Congress," Holder wrote. His letter was filed in precise obedience to the court's demands, which included a noon deadline, a three-page length, single spacing and an explicit reference to the president's statement.
At the end of three days of oral arguments at the Supreme Court on March 28, Obama's chief lawyer, Solicitor General Donald Verrilli, appealed for judicial restraint.
The Affordable Care Act, popularly known as Obamacare, "was a judgment of policy that democratically accountable branches of this government made by their best lights," he said. "I would urge this court to respect that judgment."
The dueling concepts of judicial restraint and judicial activism harken to towering Supreme Court figures of the past century such as Felix Frankfurter and Oliver Wendell Holmes Jr.
Last century, conservatives seized on the overarching idea, unelected judges should not legislate from the bench, as a way of attacking blockbuster liberal precedents of the 1950s, 1960s and 1970s. Among them: Brown v. Board of Education, striking down school segregation; Miranda v. Arizona, requiring police to advise suspects of their right to remain silent and get legal help; and Roe v. Wade, which decriminalized abortion.
Republican presidents from Richard Nixon onward used judicial restraint as their benchmark for Supreme Court nominees.
Although many of those precedents came to be accepted across the political spectrum, some, like Roe v. Wade, did not. For conservatives, Roe v. Wade became a poster child for liberal "activist" judges who extended rights beyond what the text of the Constitution permitted.
But the waters got muddied in recent years as liberals appropriated the restraint-activist paradigm to castigate conservative justices striking down laws that the liberals liked.
So, as the justices fashion their ruling on health care for public release by the end of June, legal experts are not surprised that Team Obama has harnessed conservative language to defend the law.
"Politically, people are becoming a bit desensitized to the charge of `activism,' " said Kermit Roosevelt III, law professor at the University of Pennsylvania. For partisans on either side, "a decision is `activist' when it's wrong, and not `activist' when it's right." And in any case, Obama's plea last week fell on deaf ears at the court. Justices typically vote on a case the Friday after oral arguments, a timetable suggesting they were already preparing an opinion plus possible concurrences and dissents.
"The president's remarks were strange," said Frank B. Cross, a University of Texas law professor. "He's not going to influence the court. He's playing politics; that's what presidents do." But regardless of timing, the points are valid, said Vincent Bonventre, law professor at Albany (N.Y.) Law School who believes the law should be upheld."The conservatives' own philosophy suggests they should uphold Obamacare," Bonventre said. Respect for court precedents and deference to elected officials are "fundamental principles of conservative justices." During oral arguments last month, the Obama legal team focused on Justice Anthony Kennedy, who is deemed the most likely of the five-justice conservative wing to jump ship and vote with the four liberal justices to uphold the law.
Kennedy, a Sacramento, Calif., native, is an accidental justice who won Senate confirmation in 1988 only after President Ronald Reagan saw two previous nominees, including conservative champion Robert Bork, crash and burn.
Since then, Kennedy has generally voted with conservatives but also has switched sides in notable cases including the 1992 ruling upholding Roe v. Wade, and the 2003 decision striking down Texas' sodomy law.
With the 2005 retirement of Justice Sandra Day O'Connor, Kennedy has become the court's main swing vote.
"All the justices weigh cases on the merits," said Michael Dorf, a one-time Kennedy law clerk who is a law professor at Cornell University. But Kennedy's "scale on the merits is closest to being in the middle."
Kennedy used a 1995 San Antonio case, U.S. v. Lopez, to stake out his embrace of federalism -- the Founding Fathers' concept of powers divided between the federal government and the states -- and how it protects individual liberty.
In that case, the justices ruled a federal law banning guns in school zones went beyond the Constitution's restriction of congressional regulatory power to matters of interstate commerce. The law had been used to prosecute Edison High School senior Alfonso Lopez Jr., who had brought a loaded .38 caliber handgun to school.
The Lopez decision reiterated the court's dividing line on when an act of Congress breeches the Constitution's interstate commerce wall: "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." In five separate instances during oral arguments on the health care law, Verrilli cited the Lopez language in arguing that Obamacare does, in fact, involve "economic activity with substantial effects on interstate commerce." Whether this swayed Kennedy's vote remains to be seen. During arguments, Kennedy appeared to harbor deep reservations about the law but also signaled concern about how uncompensated care for the uninsured shifts costs to those with health insurance "in a way that is not true in other industries." The health care law seeks to end cost shifting by requiring virtually everyone to have health insurance. Opponents say this mandate, like the law at issue in Lopez, goes beyond the constitutional limits.
"It sounds like (Kennedy) was trying to make up his mind how to do it," said Dorf. Although he cherishes federalism, Kennedy is "sensitive that you can't throw the clock back to 1789."


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