The Democrats’ top messaging guru on Sunday sought to calm progressive fears that the Supreme Court might strike down his party’s crowning achievement — and he starkly warned that overturning the health care reform law would make the justices look like activists.
“Anyone who judges how the court is going to rule based on the questions hasn’t looked at the history of the questions before and then the results,” said Sen. Chuck Schumer on NBC’s Meet The Press. “I’ve been on the Judiciary Committee for 30 years in the House and the Senate, and one thing I’ve learned, you can’t tell by the questioning as to how the court is going to rule.”
The No. 3 Democrat cited the 2009 decision on the Voting Rights Act where he said the “questioning was really hostile” but the justices upheld the law 8-1. He added that, as TPM has reported, conservative judges in lower courts had peppered the administration’s lawyer with tough questions and then voted to uphold the health care law.
“When the courts of appeals looked at the health care case, very conservative judges — Judge Silberman in the D.C. circuit, Judge Sutton in the Sixth Circuit — asked the same kind of hostile questions and then ruled for the law,” Schumer said.
The aggressive questioning from the two likely swing votes — Chief Justice John Roberts and Justice Anthony Kennedy — has fueled belief among some liberals and conservatives alike that there’s a good chance the court will ax the individual mandate.
The New York Democrat said the Affordable Care Act comfortably gibes with “broad tradition” on federal power jurisprudence.
“Should the Supreme Court overturn this law, it would be so far out of the mainstream that the court the most activist in a century,” he said. “It would be a dramatic, a 180 turn of the tradition of the Commerce Clause.”
Schumer invoked the two key precedents to the ‘Obamacare’ case, including the 1942 Wickard v. Filburn and the 2005 Gonzales v. Raich, where the Supreme Court upheld Congress’s sweeping authority to regulate matters that had a connection to interstate commerce.
“As recently as 2005 in the Raich case about medical marijuana, Justice Scalia himself confirmed this case,” he said.
Schumer noted that the two cases in over half a century when the Supreme Court placed limits on the Commerce Clause — the 1995 U.S. v. Lopez and the 2000 U.S. v. Morrison — were “totally different” because the laws in question did not affect interstate commerce.
Opponents of ‘Obamacare’ argue that the individual mandate is a different beast than the precedents in that it’s the first time Congress is requiring Americans to purchase a product.
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.