As a another congressional vote approaches on ObamaCare, opponents are turning again to the Constitution as the basis of a potential challenge. We wrote earlier about the potential challenges to the substance of the law raised by Eric Singer, Richard Epstein, George Will, Seth Lipsky, and 13 state attorneys general.
To those objections can be added those raised by David Rivkin Jr. and Lee Casey and by this FoxNews.com article, which might be taken more seriously if some adult had edited out the phrase "getting their legal briefs in a bunch."
And to all of those can be added a new set of constitutional concerns related not to substance but to the process by which Congress apparently plans to pass the bill, which, as Tony Blankley writes, may violate the presentment clause of the Constitution. You don't have to be a former Newt Gingrich spokesman like Mr. Blankley to be concerned about this; even leftish Constitutional lawyer Alan Morrison tells Politico, "don't do it." This presentment clause is no small matter, and lest anyone think that my own concern for it is motivated by partisan opposition to President Obama or to ObamaCare, let the record show the March 7, 2006 editorial of the New York Sun arguing that President Bush's call for a line item veto was unconstitutional on the basis of that clause.
My own view on the Constitution and ObamaCare is as stated in January: While it's certainly true that the country might benefit from a forceful judicial reminder of the limits of the commerce clause, the meaning of the takings clause, and, generally, the idea that the Constitution gives the federal government certain enumerated powers, there's a competing and in my view weightier concern that if the Supreme Court struck down ObamaCare, it might leave proponents of ObamaCare feeling a bit like anti-abortion advocates after Roe v. Wade: feeling as if an issue had been plucked out of the political process where it belonged and decided instead by a highly educated, unelected elite.
In addition, leaving it up to the Supreme Court to strike down unconstitutional laws has a tendency to absolve from responsibility the members of Congress, who, after all, swear their own oath to support and defend the Constitution. It'd probably be a healthy thing if questions about what the Constitution means became a part of the political process rather than being left to judges and law professors. What's more, if the health care question is kept in the representative democracy realm rather than being kicked out to the judiciary, it allows other arguments, like quality, cost, and the size of government, to come to bear. In the courts, the arguments are limited to the legal ones.
If ObamaCare passes and then gets overturned, it'd be better for the country if the overturning were done by a new Republican majority in Congress elected with a mandate to overturn it than by a court. But since the law hasn't even passed yet -- it's not even available for reading yet, this is all getting pretty far down the road of hypothetical speculation.
