I happened to be on the road this past Tuesday–all day in a compact car filled with all my earthly treasures–and managed, from time to time, to pick up bits of NPR and conservative talk radio, depending on what city I was passing through. It happened that in the Metroplex I tuned in to the Ben Ferguson show, only the regular host was out for the holiday. Faux-Ferguson, unsurprisingly, was in a tizzy about the much discussed recent Supreme Court decision regarding health care. The overwhelming boredom of a long road trip compelled me to listen.
Faux-Ferguson was of the opinion that, once Mitt Romney is elected president, he needs to sign an executive order voiding the decision of the court. He seemed to understand the unprecedented and unfounded nature of this action, suggesting that what America really needed was a “constitutional crisis.” After all, in his opinion, the action of the court had been unprecedented and unfounded. He was of the opinion that anyone who read the Constitution would understand that judicial review as it is now practiced is beyond the scope and power of the judiciary.
What he could not do, is point out where the Constitution contravenes what I learned in kindergarten: that two wrongs don’t make a right. Thankfully, a caller phoned in and suggested that very fact to him, implying that just as the Constitution didn’t envision a tyrannical court, it didn’t intend for an imperial presidency. The caller insisted that what Republicans needed to focus on now, to get rid of Obamacare, is electing a majority in both houses of Congress and a Republican president.
Faux-Ferguson pointed out that even with the legislative repeal of Obamacare, the legal precedent of taxing inactivity has been set and will need to be overturned. And he’s right, but there is a perfectly legitimate constitutional mechanism for achieving this without falling into the blatant hypocrisy of a so-called “consistent constitutionalist” suggesting that the actions of a single man can unilaterally overturn the actions of an entirely equal branch of government.
If the talk jockey would spend less time shouting at his dissenting listeners “have you read what the Constitution says about the court” and move on to the history of the court, he might make some headway and realize that the court’s size is not fixed. It has changed at least a half a dozen times over the course of history, both expanding and shrinking. No less a revered Democratic figure than Franklin Roosevelt made a valiant attempt to stack the court with justices in order to ensure his legislative achievements would stand. With a little determination, modern Republicans might succeed where he failed.
Certainly the eradication of Obamacare requires the election of Republican majorities in Congress and a Republican president. From there, the constitutional course is for the new Congress to pass legislation expanding the size of the court from nine to eleven justices, for the new president to nominate two strict constructionists to the bench, for the new Congress to speed there approval, and for Republican states to find new grounds on which to bring suit once again.
Sure, it’s an arduous process, but Faux-Ferguson and other Republicans need to understand that this is precisely the beauty of the Constitution. With all the whining about how slowly the wheels of progress turn in Washington, it is important to realize that the USA was founded with deliberate safeguards to insulate government from the hot will of the masses. It is just as dangerous to have a president who is willing and able to sign unilateral orders on the basis of public opinion as it would be elect justices by popular vote for short terms or to directly elect Senators (oops). The point is that each branch of government always has recourse to correct the errors of the other, but these correction require, and ought to require, a tremendous exertion of political effort. It is this political inertia that actually prevents the government standstill that would inevitably result from conflicting branches of government entering a cycle of political power-brokering and one-upsmanship.
Imagine if all the branches of government thought like Faux-Ferguson’s president. Romney would sign an executive order voiding the courts decision, then the court would unanimously strike down this move, then the legislature would move to impeach the court, but the court would have itself acquitted. Ad infinitum. What a wonderful world that would be. At least for talk show hosts.
As always, the preceding were my thoughts as a politlcal observer and not a political participant. They were not intended to endorse a particular course of action, whether that be the repeal or the implementation of the Affordable Care Act. It was simply an attempt to bring historical observations to bear on the present situation and to encourage an internal consistency by the parties as they discuss the way forward. The Kingdom will come in its own time and in its appointed way whether the government penalizes citizens for not buying health care or not.