Judicial Activism or Check and Balance?

President Obama, on the campaign trail, said that if the court strikes down the health care law, it would be what Republicans have railed against the past several years. Judicial Activism. The decision is due to be announced in June after the recent hearings.

Obama said "Ultimately, I am confident 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," I think there are  a couple of things to look at in that quote. First, is the "Strong Majority of a democratically elected Congress".

We should remember that Congress. Let's start with the House. Nancy Pelosi was Speaker. It was March of 2010. Remember them walking into the Capitol with the throng of protestors that many of the Democrats passed through as though to throw their upcoming vote in the protestors faces? Remember the so-called spitting incident?

Remember Bart Stupak, who was the leader of a group of congressmen that were withholding their vote because they didn't want government funded abortions paid for by the bill? They got their promise of an executive order (not binding at all) before they would agree to vote for it. This put them over the top in getting it passed. Remember also that in the House there was only one Republican that voted for the bill. Representative Cao from Louisiana.

But a bill doesn't become law just from a House vote. The Senate must also vote on the bill. If they don't pass it exactly as the House passed it, it must go back to the House for another vote. To pass the House version, the Senate only needs a simple majority, or 51 votes. But if they make changes to it, they must have 60 votes to pass it before it goes back to the House.

Prior to the bill coming up, Senator Ted Kennedy died. A special election was held. A man by the name of Scott Brown ran on the Republican side and his campaign slogan was that he would be the 41st vote to stop the health care bill. Brown was elected to fill that seat in Massachussets. The health care law appeared dead.

But the Democrats got together. They decided they wanted the law passed more than to listen to the people that were in the majority against it and to negate Scott Brown. There was just one way to do that. Pass the House bill as is. Even if they disagreed with parts of it, they could "fix it later". That is exactly what they chose to do. They got their health care bill, despite many thinking it flawed. The law passed with trickery on the Democrats part because they didn't have a strong enough majority in congress.

Another thing to remember was the deals that needed to be made to get this bill passed. Money given to certain states to obtain their vote. The "Louisiana Purchase" for Mary Landrieux's vote."Cornhusker Kickback" for Ben Nelson's vote. Money given to Connecticut for Senator Dodd's vote.

Obama is playing word games and fast and loose with the facts. He's right in a way. The Congress did have a strong majority of Democrats. The House only needs a simple majority to pass a bill and they had a majority in the House. The Senate needed 60 Democrats and at times they had their 60 vote majority when Senator Arlen Specter switched parties. However, he did not have a strong majority of the Congress. He eked out a victory on health care.

If the Supreme Court strikes down the law, he's calling it "unprecedented" and "judicial activism". He may be right on this. However, the health care law is unprecedented. It just may be that an unprecedented action is needed to offset another unprecedented action. The takeover of the health care system is unprecedented. The judicial branch is an equal branch of government created to be a check and balance on the executive and legislative branches. When one branch does something unprecedented, would you not expect another branch to react in the same manner at times?

I'm not much on Science. I tell my kids that I can't be much help to them with Science because about the only thing I get right with Science is the spelling of it. There is one thing that I've learned though and it's physics (science) and pretty basic. For every action, there is an opposite and equal reaction. Congress set a precedent. Why shouldn't the Judicial Branch set a precedent if needed?

Obama has already taken on the Supreme Court once in a State of the Union speech which led to Justice Samuel Alito mouthing out "that's not true" on camera to Obama's words. I believe this too, was unprecedented. Not just for a justice to be caught mouthing disagreement but also for a President to attempt to dress down a Supreme Court in the State of the Union speech.

This case has worked its' way through the system. It's been upheld and shot down and even called Unconstitutional by one judge. It has earned it's place at the Supreme Court where it will be judged. To try to change the facts about how the law came to be and to make excuses for how it failing, if it fails, before it fails, seems more like he's trying to influence the outcome.

You're welcome to comment.


Brett