Constitutional Empathy

by Gary Bauer


In 2005, Barack Obama was one of only 22 senators to vote against John Roberts for Chief Justice of the U.S. Supreme Court. In explaining his vote against Roberts, Obama outlined his criteria for a judicial appointee, ending with his view that in tough cases he would look for a judge that would apply “the depth and breadth of one’s empathy.”

Federal Judge Roger Vinson probably did not have Obama’s empathy standard in mind last week in ruling that ObamaCare is unconstitutional. Vinson’s decision nevertheless displayed a broad and deep empathy—for our Founders and our founding documents. A New York Times editorial called the ruling “a breathtaking example of judicial activism and overreach.” The White House responded that the decision was “out of the mainstream,” which is true only in the sense that the ruling was out of mainstream of left-wing judicial thought.

Liberals have historically used the courts to enact by judicial fiat laws that they could not persuade the public and its elected representatives to embrace. In striking down ObamaCare, Judge Vinson exercised his judicial discretion and affirmed the will of the American people over a recalcitrant governing party.

The case hinged on the constitutionality of the individual insurance mandate, which Democrats euphemistically refer to as the “individual responsibility” provision. Democrats insisted that the provision be included in the bill, which was odd considering that most liberal policies promote the exact opposite, personal irresponsibility. From no-fault divorce and abortion-on-demand to the industry bailouts and illegal immigration amnesty, liberal policies create moral hazards by compensating large groups of people and entire sections of the economy for reckless behavior.

It was also odd because not so long ago Obama himself argued against the individual mandate.

“If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,” Obama noted during the 2008 presidential campaign.

Since becoming President, Obama has been far less logical in his arguments for ObamaCare. In fact, the two-year effort has been full of lies and distortions—about taxpayer funding of abortion, about the law’s true costs, about whether the individual mandate is a tax, and about whether those happy with the insurance they have can keep it, to name just a few.

Democrats took all this only as seriously as they had to in order to pass the legislation. Even after they jettisoned the government insurance option, the bill gave 2,000 new or expanded powers to the federal government, according to the Center for Health Transformation.

Liberals pushed through ObamaCare without regard for the central question of its constitutionality.

When then-House Speaker Nancy Pelosi was asked during a 2009 press conference where the Constitution authorizes Congress to compel Americans to buy health insurance, she responded, “Are you serious? Are you serious?” The reporter’s question was serious, but Pelosi’s was clearly rhetorical.

Many on the Left regard the Constitution as an obstacle to the enactment of its policy agenda rather than as what it was truly meant to be: America’s owner’s manual. Every American politician and judge puts his or her hand on the Bible and swears to uphold the Constitution. But to modern liberals, the Constitution retains as much relevance to policymaking as does the Bible.

Judge Vinson actually took his solemn oath seriously.

As Vinson stated in his ruling, “This case is not about whether the act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the constitutional role of the federal government. … Congress exceeded the bounds of its authority in passing the act with the individual mandate.”

The House of Representatives passed repeal legislation soon after the new Congress convened. A repeal effort was defeated along party lines in the Senate last week. But that loss at least ensures that ObamaCare will remain in the headlines and on the front pages in the buildup to Election Day 2012. As Texas Republican Sen. John Cornyn said, “These are the first steps in a long road that will culminate in 2012, whereby we will expose the flaws and the weaknesses of this legislation.”

The ultimate fate of ObamaCare will probably be decided by the U.S. Supreme Court. In a closely divided court, Justice Anthony Kennedy may end up as the ultimate arbiter of the law’s constitutionality. Kennedy’s unpredictability has both sides nervous.

Yesterday marked the 100th anniversary of Ronald Reagan’s birth. It would be an appropriate tribute to Reagan, and to the rule of law, if ObamaCare met its demise through Judge Vinson and Justice Kennedy, both of whom were appointed to their current seats by the Gipper.

President Reagan’s respect for limited government is a gift he left for all of us.

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Former presidential candidate Mr. Gary Bauer is president of American Values and chairman of the Campaign for Working Families.