Atlantic writer Russell Berman wonders:

…[Obama’s] decision to champion his signature achievement in such pointed terms just weeks before the high court’s ruling is due raised the question of whether Obama was trying to jawbone the justices at the 11th hour.

…“It seems so cynical,” he said, “to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”…

The speech came a day after the president, in response to a reporter’s question, commented directly on the case before the justices…”Under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case,” Obama said. “This should be an easy case. Frankly, it probably shouldn’t even have been taken up,” he added…

[In 2012, Obama had] sharply warned the Court not to rule against his healthcare law the first time around. “I’m 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,” Obama said then.

If Obama’s words are any guide, it seems fairly clear that he’s trying to influence the Supreme Court justices, despite Harvard law professor Charles Fried’s statement to the contrary, “I can’t imagine it’ll make any difference, and I can’t imagine he thinks it’ll make any difference.” Fried has a particularly impoverished imagination if he can’t imagine the latter, because Obama has made it clear from the very first days of his presidency that he thinks his powers of persuasion (coupled, although unmentioned by him, with powers of arm-twisting and/or possible threats) are extraordinary.

What’s more, it’s fairly clear from the way the opinions were written in Sebelius that something had persuaded Justice Roberts to change his mind at the last minute, whether it was mere persuasion, or pressure of some sort.

But persuading the justices (or one justice) is only one motive for Obama’s words. Another motive would be to undermine the public’s regard and respect for the Supreme Court—particularly when that Court happens to disagree with Obama, or when it takes away an entitlement of any sort that has been “woven into the fabric of America.” Obama’s not talking about the law there, or an interpretation of the law, he’s saying that nothing once given can be taken away, and that the liberal/left agenda for America should be unstoppable no matter what the law says.

There’s more, too. When Obama speaks about SCOTUS he’s donning the mantle of his “constitutional scholar” background, harking back to when he taught Constitutional Law at the University of Chicago long ago. He has discussed that part of his résumé often enough that he probably assumes the listener will remember that he’s not just speaking as president but as someone who is supposed to be an expert on the matter.

Of course, that doesn’t stop him from misstating the law, because in fact the “well-established precedent” about the interpretation of the wording of statutes (which is what King v. Burwell involves) tends to fall on the side of invalidating the federal subsidies, although there’s plenty of room for argument (there always is, with lawyers). But pretending that the legal precedent is obviously in favor of the Obama position is just that, pretense.

[NOTE: See this, this, and this, for examples of the legal arguments against Obama’s position.]

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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