But the Right wants its followers to believe that -- despite the clear language of the Constitution and the intent of the Framers to give Congress broad powers to fashion policies to respond to the nation's commercial needs -- the Affordable Care Act is "unconstitutional" and the Supreme Court's GOP majority might agree.
High Court Hypocrisy
You might think that the Supreme Court justices, especially conservatives who call themselves "strict contructionists," would honor the "originalist" intent of the Framers. But that was not the impression left by the five Republican justices when they heard arguments on the law.
Instead of a serious discussion of constitutional issues, the Republican justices peppered U.S. Solicitor General Donald B. Verrilli Jr. with silly what-if questions, like could the government require Americans to buy broccoli?
Strictly speaking, the constitutional answer to the broccoli question would be yes -- if those activities were deemed part of interstate commerce and if Congress and the President had the political will to do so. The practical answer, of course, would be no, since that idea would be nutty.
Dreaming up crazy hypothetical possibilities has become something of a cottage industry on Fox News and other right-wing talk shows, but it was still shocking for many to hear these talking points coming out of the mouths of Supreme Court justices.
Even more shocking in a way was a question posed by Justice Anthony Kennedy, who is often considered the most reasonable Republican on the High Court, though he has a troubling history of perverting the Constitution for partisan ends. He was the author of the Bush v. Gore decision that misused the 14th Amendment to put popular-vote loser George W. Bush in the White House. [For details, see Neck Deep.]
Kennedy told Solicitor General Verrilli that the government faced "a heavy burden of justification" for the individual mandate on Americans to buy insurance, the provision at the heart of the Affordable Care Act. Like his Republican cohorts, Kennedy insisted that Verrilli offer "some limits on the Commerce Clause."
However, in his comments, Kennedy turned the actual "burden" on its head. It was the Framers of the Constitution who decided that the Commerce Clause should be open-ended, in part because they knew that the future challenges to the United States could not be fully anticipated. They left these future choices up to the democratic process and congressional debates.
It was not up to the Obama administration to revise the Constitution by saying what limits there should be in the Commerce Clause regarding legislation necessary for the country to compete economically or "to promote the general Welfare."
And the Tenth Amendment, another favorite talking point of the Right, wouldn't apply in this case either, since it only reserves for the states and the people "the powers not delegated to the United States by the Constitution" -- and the Commerce Clause is an enumerated power.
In her support of a "treason" trial, the woman in Ohio may have been referring to President Obama's insistence that the Affordable Care Act is constitutional and urging the Supreme Court not to overstep its bounds by reinterpreting the Constitution in order to strike down a law enacted by the elected branches of government.
But it should come as no surprise that the President and the members of Congress who voted for the law believed it was constitutional, even if five Republicans on the Supreme Court might decide later to disagree.
Ironically, when past Supreme Courts have interpreted the Constitution to justify expanding individual liberties, like ending racial segregation or respecting personal privacy, the Right has railed against this "judicial activism" or what right-wing legal theorist Robert Bork called "judicial imperialism," that is, justices going beyond a strict reading of the Constitution.
Now, it appears that some on the Right wish to follow up the expected decision by the Supreme Court's five Republican justices to strike down the Affordable Care Act by holding a treason trial of Barack Obama.
After failing to speak out against this idea, which drew cheers at Monday's Ohio town hall, Romney belatedly responded to questions from the news media, saying "obviously, I don't agree that he should be tried."