Commentary

Solicitor General Rues The Role Of The Supreme Court And The Constitution

Craig Bannister
By Craig Bannister | March 26, 2012 | 11:59 AM EDT

While defending Obamacare, the solicitor general of the United States of America actually bemoaned having Constitutional constraints – and a Supreme Court that enforces them.

In an interview regarding Obamacare, Acting Solicitor General Neal Katyal complained about the power of the Supreme Court to declare it unconstitutional:

“If the Supreme Court struck this down, I think that it wouldn't just be about health care. It would be the Supreme Court saying: 'Look, we've got the power to really take decisions, move them off of the table of the American people, even in a democracy.”

Yes, true. That’s exactly what the Supreme Court would be saying - because it actually does have the power, and the responsibility, to strike down unconstitutional laws.

Katyal then complained that the Supreme Court might use its power to subvert The Will Of The People by striking down Obamacare:

“The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can't have it.”

Again, his statement is true, but his implication – that the Supreme Court shouldn’t strike down popular laws – is false.

It’s not the Supreme Court’s job to uphold popular laws. It’s the court’s job to uphold the Constitution.

And, even if Katyal’s Will Of The People argument was valid – which it’s not – Gallup Poll results show that Americans don’t think much of Obamacare:

  • 72% of Americans say Obamacare is unconstitutional
  • More Americans want it repealed than want it preserved (47%-44%)
  • More Americans think it will hurt their personal health care situation than think it will help (38%-24%)

Remarkably, while 56% of Democrats say Obamacare is unconstitutional, 77% say they DON’T want it to be repealed.

But, back to our acting solicitor general, Neal Katyal.

Katyal claims that the Supreme Court declaring Obamacare unconstitutional would be “a really profound thing for an unelected court to say.” He goes on to say that striking down Obamacare would be “such a grave thing for unelected judges to take a decision of such a magnitude for American people.”

So, Katyal is warning us about unelected people passing judgement on Obamacare. Guess what: HE’S unelected.

Near the end of his interview, Katyal may have let his true feelings slip about the Supreme Court deciding the Obamacare case:

“What I think is not appropriate is to take that policy debate and put it in front of the Supreme Court of the United States.

So, it’s “not appropriate” for the Supreme Court to judge laws that promote Obama’s policies, even if they’re unconstitutional? Hmmm.

Finally, Katyal concludes by offering some sensible advice:

“[I]f they don't like the law, [they] should vote against those who voted for it. Vote against President Obama, or vote against the members of Congress.”

Yes, that’s true. And, it goes both ways, too.

If Obama and Katyal don’t like the Constitution, they’re free to try to get the votes to amend it.

But, they can’t just ignore it.

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