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As the U.S. Supreme Court deliberates the Obama healthcare law, the court itself is on trial.

Obamacare supporters are attacking the justices as “hacks dressed up in black robes,” calling for limits on their life tenure, and claiming judicial review is undemocratic.

Worse, President Obama and his Secretary of Health and Human Services Kathleen Sebelius are shoveling money into implementing the law as fast as possible and refuse to discuss an alternative. That’s irresponsible. What’s needed now is not court bashing but contingency planning.

The Obama administration and allies in Congress have nine weeks to plan how to pick up the pieces on a vast array of health insurance issues. It’s the President’s duty to have a plan. It will signal his respect for the nation’s system of checks and balances — something he has utterly failed to show.

He should take a page from history. When the national government was only a decade old, the Supreme Court came under similar attack. But how it was handled ensured the survival of our system of checks and balances. The stakes may be that high now.

Nearly all the framers of the Constitution agreed that federal judges would be obligated to strike down any act of Congress that violated the Constitution. Only four of the 55 delegates at the Constitutional Convention in 1787 questioned whether judicial review was desirable.

During the ratification debate, critics with pen names such as Brutus and Federal Farmer raised the danger that judges might strike down laws offensive to their own personal views. In response, Alexander Hamilton assured them in The Federalist that judges were tied to one standard — the written Constitution.

When the First Congress met in 1789, Congressman James Madison implored the House of Representatives to enact a Bill or Rights.

Rights such as trial by jury and freedom of assembly had long histories, and some congressmen said it was unnecessary to write them down. But Madison said adding them as amendments to the written Constitution would mean judges would be obligated to protect them against majorities in Congress.

Judges already were expected to exercise judicial review, just as they are today.

Judicial review occasioned little controversy until 1798, when the fledgling nation broke into two hostile political parties, the Federalists and Republicans. Most judges were Federalists and seen as partisan, and trust in the judiciary plummeted.

In 1800 Thomas Jefferson and Republican allies swept into office, intent on attacking the court. They called judicial review “a new power of a dangerous and uncontrollable nature.” The federal judiciary was on trial, as it is today. Chief Justice John Marshall saw it was urgent to rescue the nation’s checks and balances.

In his now famous ruling in Marbury v. Madison (1803), Marshall began with the philosophy expressed in the Declaration of Independence, that the people have an “original right” to establish their own form of government and define and limit its powers. And “that those limits may not be mistaken, or forgotten, the Constitution is written,” Marshall continued. “Certainly all those who have formed written constitutions contemplate them as forming the fundamental and paramount law of the nation,” and “consequently any act of government contrary to that paramount law is void.”

Marshall didn’t invent judicial review. But his cautious definition of the review power assured a nation newly fearful of judicial discretion that he and his fellow Justices would enforce the written Constitution but go no further. Judges would not strike down laws that conflicted with their private views.

Marshall’s prudent strategy to rescue a court on trial needs to be repeated now.

The Justices must tie their ruling on the Obama health law to the written Constitution and avoid discussions of policy. Policy is not their job.

The President needs to signal to the nation that he is prepared to comply with the court. And Congress must be ready with alternatives. There’s no time to waste.

Betsy McCaughey is a former Lt. Governor of New York State and author of “The Obama Health Law: What It Says and How to Overturn It.” She is president of Defend Your Healthcare and founder of the Committee to Reduce Infection Deaths. This post first appeared at Newsmax.

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44 Responses for “Obama Supporters Put High Court on Trial”

  1. southern doc says:

    “The Justices must tie their ruling on the Obama health law to the written Constitution and avoid discussions of policy”

    When Judge Scalia brought up the non-existent “Cornhusker Exemption,” a favorite Fox News talking point, it was made clear that this ruling is going to be about nothing but politics.

  2. Greg says:

    Thomas, Scalia, Roberts and Alito ARE corrupt, political hacks. There will be no fair, legal ruling on this case or any other while they are sitting on the bench. They’ve ruined the Supreme Court’s reputation beyond repair.

    • DeterminedMD says:

      Yeah, and the bozos on the equal extreme left, real character and avoidance of political agendas, eh? God, do you people think before you type?

      All this talk of changing the Constitution for putting judges on the court, how about this idea: BIPARTISAN nominations? Like, considering the BEST person for the job, not the partisan hack to promote extremist agendas for the next 25 or more years?

      But, face it, the law sucks as a whole, and the egos being bruised are as intact as a 3 year olds. And my bet is most of the commenters here vote per party affiliation first and almost always, per the writings Left and Right read here. Me, started out with John Anderson in 1980, reluctantly went with Paul in 2008, now in 2012, I guess its time to write good ol’ Mickey M’s name.

      Or, Goofy, probably more fitting!

      • Greg says:

        Scalia and Thomas are actively involved in Republican politics. They get paid speaker’s fees for speaking at right wing group events. Thomas’ wife is employed by a group whose platform is overturning Obama’s healthcare reform, yet he has refused to recuse himself from this case.

        This isn’t about left vs. right, this about some members of the Supreme Court clearly being biased and objective.

        I couldn’t care less who have and who you are supporting for president and that has absolutely nothing to do with the matter at hand.

        • DeterminedMD says:

          yeah, like Kogan and Stotmeyer (butchering names but readers know who i am talking about) are really weighing the arguments by both sides!

          I don’t care what you think about my rebuttal comment, I just want readers to realize that partisan shots at one side of the aisle are wasted space. I at least want people to know I hate both extremist sides equally, they have damaged this country enough and time to relegate both to the septic tank of uselessness for our country. Oppression by war or outlandish legislation has no value to people like me in the middle!

          Democrats F—ed it up by forcing PPACA passed, so enjoy the slap back by the court to make responsible and invested people to rethink the needs.

          It just won’t be by the current crap, er, crop of alleged representatives in the House and Senate.

  3. Joe says:

    it was the ‘cornuhusker kickback’ — alliterations matter in politics…

    The point the Justice was making — whether you choose to agree or not– is that the bill was passed because of a wide array of special interest carve outs to get the votes necessary for passage.

    The SCOTUS is neither empowered nor expert in determining which of the several thousand clauses of the bill should be struck down with the mandate…

    The point being is that perhaps the LEAST radical decision, if the mandate is unconstitutional, is to strike the whole law…

    E.g. the school loan program modification was not related, but essential to passage of the law because of its mythical ‘reduces the deficit’ properties…

    • JEPittsburgh says:

      The “cornhusker kickback” wasn’t even in the final statute. It was removed b/f final passage so it was irrelevant to the discussions of the court.

      And as a former Congressional staffer I can tell you that virtually EVERY LAW has special provisions to get votes. This is not unusual even if people don’t like it and the Justices must know that.

      This was political statement by Scalia, not a legal one.

      • DeterminedMD says:

        Genuinely, thank you for your experience with the system and first hand opinion. My question to you as a former staffer is this: from what you have witnessed first hand, is it wrong to advocate to get rid of incumbents in office longer than 10-12 years, MAYBE for a Senator up to 18 years max?

        • JEPittsburgh says:

          I have very mixed feeling about term limits. THe idea of bringing new people into the system is great but the fact is people who want to make politics a career find a way to do so. See Sam Brownback who after “self imposed” Senate term limit jumped to Governorship or California where state office holders trade jobs upon term limits and state legislators who go from one house to another and back again. I think it is a better bumper sticker slogan than a real way to change things.

          Frankly, from personal experience I think the amount of money in politics is a far bigger problem. I left DC about a decade ago but I saw Congressional campaigns go from on avg $350-500K in the late 1980s to over a $1 million by 2000 to over $2 million today. It hard to not be bought and sold when you have to raise that kind of money unless you are independently wealthy and can self fund.

          The Citizens United decision will just make the money worse.

          • DeterminedMD says:

            thanks for the reply. Decisions in my opinion are about maximal benefit, and screwing the 5% exceptions suck for them, but I can’t find an answer that benefits all. Hey, I’m a physican, so that is the reality I have to face!

  4. JRCnnr says:

    Betsy McCaughey? Really? She’s one of the opponents of ACA that claimed it included so-called “death panels.” http://www.thedailyshow.com/watch/thu-august-20-2009/betsy-mccaughey-pt–1 Does she still believe this?

  5. DeterminedMD says:

    Good laws are not contested 2 years after they are passed. And what the hell was Pathetic Pelosi and Ridiculous Reid thinking in being so happy to have pharma and insurers behind them anyway? Responsible industry does not sell out its primary purpose just to appease politicians, so it was painfully obvious both industries figured out a way to continue to profit obscenely even with this bill passed. Opine away all you like, folks, in the end, the Constitution will prevail as written, the judicial branch will weigh in if the executive or legislative branches went out of bounds with legislation. I advise the reasonable and fair readers to consider this: what responsible and realistic person working in government, and yes I know that is an oxymoronic definition of what slimes down the halls of government these past 3 or more decades at least, is going to fight the process if they know in their heart they worked and passed legislation that serves the public appropriately?

    What, no faith in the courts? Maybe. Or, maybe it is deeper than that, like, no faith in the legislators? Again, November 2012 is more about who stays in the House and Senate than just the doofus in the White House. You want term limits? Make it inclusive for all in public offices, not just where it serves yet another partisan agenda.

    Remember what George Carlin said, it is not the politicians who suck, but, the public. They keep these charlatans in office. Look in the mirror and distain yourselves, that is what this pathetic exercise in trying to fix health care started with! But, that is asking for people to think and, wait for it, expend time, money and energy to evoke change. Not gonna happen with this culture per 2012!!!

    • SteveH says:

      “Good laws are not contested 2 years after they are passed.”

      Then conservatives should stop contesting it.

      • DeterminedMD says:

        wow, how limited a point of view. Maybe liberals shouldn’t write laws that affect 100% of the country that only at best 50% find acceptable. I would attack the equally lame and destructive republican iraqi invasion acts, but the democrats sided with that in a sizeable voting block, so what is the take home message there? If it gets me reelected, who cares about principle.

        Only that in my bank account, eh!?

        Hmm, rigid and inflexible thinking in people who dramatically affect our lives for possibly decades. That’s a campaign slogan in the making: vote for me so I can ignore you later!

        Face it, democraps and repugnocants suck!!!

        • SteveH says:

          Of course, only liberals write laws that affect 100% of the country.

          • DeterminedMD says:

            No, they don’t, but lately they are acting like “who the hell is anyone to challenge what we think”, and I’ll bet that more than 50% of incumbents in office more than 20 years for the House and Senate are Democrats. And not 51% mind you.

            As I have asked before, who is worse, the party that says outwardly “we are only interested in the well being of our cronies and pals”, or the other party who says “we are here to help everyone who wants our help” but then thumbs their nose at those who are genuinely looking for help but not indentured servitude? Democrats are the latter, and I find their rhetoric for the brief tenure of 2009-2011 to be even more offensive than what I detest from the Republicans.

            I hate hypocrites. PPACA is full of hypocrisy and self serving agendas.

            It cold be interpreted as going to war on your own people. Insidiously and covertly, but, destroying lives in the end. But hey, if you are a democrat buddy, you don’t care, eh?

    • Greg says:

      Conservatives have been continuously fighting the EPA, Roe vs. Wade, Separation of Church and State, the ERA, any state that passes gay marriage, and countless other laws they don’t agree with. They never stop. It isn’t about the laws being good or not, it’s about the religious right in this country being insane.

      • Nate Ogden says:

        actually isn’t it the EPA fighting conservative States? It’s new regulations and rules that they are pushing back against, some with serious consiquences. How can you argue with a strait face that they should just shut up and let the EPA shut down major parts of their economies?

        Gay Marriage has been the left trying to overturn laws they don’t like or having constitutions changed to allow it, again the left pushing not the right.

  6. Matthew Holt says:

    Good Lord. A post from Betsy McCrackers that isn’t about death panels or the evils of government action on health care, and has only one crazy notion in it–that the Administration should stop enactment of a law already passed because it might have a legal challenge against it. (After all in that case all government should stop. Presumably the south shouldn’t have had schools because Brown vs Board of education was a mere 60 years away….

    But seriously running a country based on what a bunch of agrarian aristocrats wrote in 250 years ago makes little more sense than running a society based on what some random Mediterraneans wrote 2,000 years ago, or for that matter what some random Arab wrote 1300 years ago. Still lots of people seem to think that’s what we should do

    Not because it’s the right thing to do but because they agree with the political interpretation.

    The health care system is broken in 21st century America and it needs a solution. The ACA is the best we can do, it involves clearly necessary Federal regulation over the health care market and the SCOTUS should leave it well alone.

    Constitutional or not doesn’t matter a hill of beans.

    • JEPittsburgh says:

      Well said.

      One other thing – if the founders had intended the constitution to be a static document that would not adapt to the times then why did they have an amendment process and permit the Supreme Court to interpret it?

    • MD as HELL says:

      The agrarian aristcrats lived under a king. They wrote a document to limit the federal government so as to prevent a monarchy or a dictatorship. The states were never supposed to be so weak as they are today and the federal government was never to be so powerful.

      The federal government is supposed to be about relations between states and as the United States of America with other nations. Now the states have become irrelevant. Soon countries will be irrelevant. (they already are irrelevant to multinational corporations and illegal immigrants.)

      The Constitution is a very pure document. It can be amended; there is no need to subvert it unless one’s purpose is nefarious.

      • Nate Ogden says:

        http://libertylawsite.org/2012/04/30/yale-and-the-aca/

        “The Yale School’s apoplexy is in no way driven by a fear that the Court might ding the entire ACA (Medicaid, exchanges, and all): to its denizens, the individual mandate is the ACA. That seems odd. Candidate Obama campaigned against the mandate. The mandate is a very small piece of a very large statute, and it is easily replaceable with, say, a tax. (Most progressives say it is a tax, except in a different form. Well then, re-enact it in the right form.) And the mandate was inserted in the ACA for one reason only—to buy the support of the insurance industry. A progressivism that can no longer tell the difference between a principled commitment and a give-away to special-interest hucksters has some explaining to do, not least to itself.”

  7. JEPittsburgh says:

    When I listen to the objections to the ACA I can’t help but think of John Kerry’s “I was for it before I was against it.”

    The individual mandate (and the employer mandate before it) were Republican ideas. The individual mandate was developed by that great liberal think tank – The Heritage Foundation – and was championed by Republicans like Bob Dole, Bob Bennett, Newt Gingrich, and Chuck Grassley . It wasn’t until Obama decided to include it in his plan that all of the sudden it was “socialism.”

    I am sure if Pres Bush II had championed it all the people objecting to it today would be behind it 100% and it would never have been challenged in court.

    • DeterminedMD says:

      Actually, another reason to despise him and his ilk!

      Politicians do not set health care policy. I’m sure plumbers and electricians are chomping at the bit to get legislation to control their professions!!!

      This post will show who is about pure partisan principle and who is about doing what is best for the American citizens.

      85% of these comments will suck. Hey, one of mine already has!!!

    • Actually, it would have probably been challenged in court by those supporting it today, which goes to show you that we lost the last shreds of integrity in our political process.

  8. DeterminedMD says:

    I’ll say this, I know in my heart that plumbers and electricians have more autonomy to practice their profession than physicians do, and those professions can cause some serious havoc and harm if not responsible.

    Hey, politicians are doing this for control, and I know equally that many of them would smile hearing me note they just want doctors to be called health care service people. Hey, our title still one ups them as people the public trusts.

    Wow, it is only May and the volume is ratching up with this decision looming!!!

  9. This Health Care Reform is only a distraction so people focus in something else and that way don’t see how deep we’re in debts this country it’s been destroyed by politicians

    • Peter1 says:

      “how deep we’re in debts this country it’s been destroyed by politicians”

      How come they would never get elected if they said that once in office they’ll cut your benefits? Would that be the voters with unrealistic expectations?

      Seguros, do you receive any government benefits?

  10. TTT says:

    McCaughy is the most disgustingly dishonorable unethical liar in the history of Washington lobbying. The look of revulsion on Jon Stewart’s face as she tried to filibuster her way through an interview about PPACA with her Sesame Street caliber stunt of “not being able to find her page in the book” should be tattooed on the inside of her eyelids, so even despite her deficiencies of basic humanity she will stand a chance of comprehending how other people view her.

  11. David Godoy says:

    Ides of March – Healthcare Reform/Politics isn’t about what’s best, it’s about winning…plain and simple. Though I’m sure their are plenty of good, genuine people out there lobbying one way or the other, the fact that Republicans were for this, and now against it, and vice versa for some Liberals is the pudding that has the proof. I enjoy this forum, because there are real people here who care and post thoughfully about what they feel is right…and then there are some who just want to win.

    Thankfully, there are organizations out there whether prompted by government/money/geniune compassion that are working to improve healthcare, regardless of this pissing match, with real effective solutions. Keep up the good work everyone, at least MOST of the intellectual fighting on this site, is just that…intellectual.

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