Opinion: Columnists

Sunday Reflection: The Supreme Court, Obamacare and 'legitimacy'


In the weeks and months leading up to the Supreme Court's Obamacare decision -- when Democrats were afraid they were going to lose -- we were treated to a steady parade of liberal pundits and politicians arguing that a decision to strike down the national health care law would undermine or even destroy the Supreme Court's legitimacy.

As late as Wednesday -- the day before the decision's release -- Democratic congressional leaders assembled to warn the court of the dangers of ruling the wrong way. As The Hill reported, California Democrat Xavier Becerra claimed that striking down Obamacare would mean that the Supreme Court was "a partisan body no different from Congress." Connecticut Rep. John Larson declared the law was clearly within Congress's commerce power: "There's no question that the commerce of health [care] crosses state boundary lines."

Well, it didn't turn out that way, since the court found Obamacare outside of Congress's commerce power but within its taxing power -- even though the administration had claimed that the Obamacare mandate wasn't a tax. But don't expect Larson to complain. And AFL-CIO President Richard Trumka was also on the attack: "What we have is several justices on the Supreme Court that, while they were being confirmed, talked about how they wouldn't be activist [and instead] have become the most radical activist judges we've seen."

Becerra added, "We should all take some time tonight to pray a little to make sure the Supreme Court doesn't come out with another 5-4 decision which, once again, unmasks its political tendencies."

Given that the Democrats won by 5-4 instead of losing by 5-4, we can expect all these complaints about activist judging to be shelved until the next big case. But while talk of the Supreme Court's legitimacy may fade, I'd like to talk about something related: The damage that Obamacare did to the legitimacy of the other two branches of government.

With the focus on the Supreme Court's opinion, it's easy to forget the sleazy way that Obamacare was passed. But the Supreme Court itself points out one key aspect. Though President Obama pooh-poohed the idea that the mandate was a tax, the Supreme Court found that, in fact, it was. In an extended discussion with George Stephanopoulos back in 2009, Obama was adamant:

STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.

OBAMA: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but ...

STEPHANOPOULOS: But you reject that it's a tax increase?

OBAMA: I absolutely reject that notion.

Obama had to reject that notion, since otherwise Obamacare's tax increase would have represented a massive middle-class tax increase indeed, and one that violated his promise that families earning less than $250,000 a year would see no tax increases of any kind under his plan. Now the Supreme Court has basically said he lied.

Of course, that's not the only broken promise from Obamacare's passage. Obama also promised that if you liked your existing health insurance policy, you'd get to keep it -- something that quickly turned out to be false, as the changes mandated under the health care law led to severe cuts in coverage, or even cancellation of coverage, by insurers.

And if the executive branch's treatment of Obamacare was characterized by lies, the legislative branch didn't look any better. Obamacare, remember, was rammed through in the teeth of popular opposition; when the special election victory of Scott Brown meant that Democrats no longer had a filibuster-proof majority in the Senate, the bill was squeezed through via a "reconciliation" procedure under the fiction that it was a budget bill, not substantive legislation.

Add to that the intense role of lobbyists and special interests in drafting the law, Nancy Pelosi's famous remark that we'd have to pass the bill to find out what was in it and the rampant vote-buying (remember the "Cornhusker Kickback"?), and we have a process that was dishonest, corrupt and far less legitimate than any conceivable Supreme Court ruling on Obamacare.

So, at the end of the day, the legitimacy question rests not with the Supreme Court, but with Congress and the president.

So far, the returns are not good. A Rasmussen poll last week showed only 22 percent of Americans think our present government enjoys the "consent of the governed" -- the Framers' standard for legitimacy. Given what's happened with Obamacare, the surprising thing is that the number is so high.

Now consider: If a Supreme Court that many Americans regard as illegitimate constitutes a danger to the Republic, what kind of danger is posed when the government as a whole is regarded as illegitimate?

Ponder well. There will be an exam in November.

Examiner Contributor Glenn Harlan Reynolds is a University of Tennessee College of Law professor and founder and editor of

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