An Unfortunate Air Of Plausibility (Cont.)

It turns out that the “President Obama wants to pay your utility bills” scam isn’t the only government-related scam making the rounds these days.

Now, crooks are taking advantage of the recent Supreme Court decision upholding the constitutionality of the Affordable Care Act in a ruse to try to get our personal information.  According to the Federal Trade Commission, the scammers are calling people, saying they are from the government, and asking for personal information — Social Security numbers, Medicare ID numbers, and credit card and bank account numbers — that they say is needed to implement the law.  The FTC says that if someone from the government calls and asks for your personal information, you should recognize it as a scam and hang up.

Of course, it’s not exactly far-fetched that the government would contact you about your personal information.  We routinely provide such information whenever we file tax returns or complete other forms that the federal government requires from us.  And since the Affordable Care Act says the government will be paying even more attention to our economic activities — such as whether we have appropriate health care insurance — and our health care usage, it’s not implausible that the feds might need our bank account or credit card information.

The FTC says with confidence that the government won’t be making unsolicited requests for information by phone — but isn’t it going to need to collect such information at some point, in order for the law to work?  What happens when an official-looking letter to your home address that purports to come from the federal government asks you fill out a form that provides your confidential financial and personal information, including where you current have your health insurance, and instructs you to mail it to some random P.O. Box in Kansas City, Missouri?  Should we just crumple it up and throw it away?

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Waiting On The Court

Deep in the marbled chambers of the majestic Supreme Court building, members of the High Court and their clerks are hard at work on the opinion — or more likely, opinions — to be published when the Court decides the constitutionality of the “health care reform” legislation.  The opinion(s) will be issued within the next week or two as the Court wraps up its work for the year.

The issues swirling around President Obama’s signature legislative achievement have dropped off the public’s radar screen recently, but you can bet that they remain front and center at the White House, the Romney campaign headquarters, and on Capitol Hill.  Whether the Supreme Court upholds the statute, or strikes it down in whole or in part, its decision will be like a bomb going off in the middle of the presidential campaign.  I can’t remember another situation like this, where the Supreme Court will decide the constitutionality of major, controversial legislation — and do so only a few months before a presidential election in which the Court’s decision itself will almost certainly be an issue.

The timing of the Court’s decision will be interesting for two reasons.  First, both carefully scripted campaigns will be knocked off message, for a few days at least, and will be required to respond on the fly to the Court’s decision and the stated rationale for that decision.  The unpredictability of the Supreme Court’s decision means we might just get an honest, candid reaction from a candidate or a Congressman for a change — before the talking points get drafted and everyone adheres to the accepted party line for their side.

Second, and more important, Supreme Court opinions are serious documents written by serious people.  The Justices know their opinions will be carefully read and critiqued, for their intellectual and legal merit, immediately and for decades to come.  They will be working to make those opinions as persuasive and carefully reasoned as possible.  The opinions will address fundamental issues about the structure of our government and the extent of federal power, taking into account the language of the Constitution, the history of our republic, and the decisions of prior Courts.  They will grapple with those issues in a sober, respectful manner, with the majority and dissenting opinions acknowledging, and responding to, each other.  What a refreshing change from the shouting, bullet point blather that passes for political discourse these days!

This will be an exciting time for our country and our Constitution.  It’s another reason for us to step back, admire the foresight of the Framers, and see that our 225-year-old Constitution still works, and works well.

Balance Of Powers 101

Last week’s oral arguments before the Supreme Court about the Affordable Care Act — and the questions from Justices that suggested skepticism about the law’s constitutionality — seem to have caught some people off guard and caused them to make some very odd statements about how our government works.

Today, for example, President Obama said:  “Ultimately, I am 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.”  He added:  “And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”

I’m confident that the President — who graduated from one of the country’s best law schools — can’t possibly believe those statements, because they reflect a profound misunderstanding of the balance of powers that exists under the Constitution.  For more than two centuries, it has been well established that the Supreme Court is the ultimate arbiter of whether a law violates the Constitution.  And, since a federal statute becomes a law only if it has passed both houses of Congress and been signed by the President, declarations of unconstitutionality necessarily will occur only after a “majority of a democratically elected Congress” — and often a “strong majority” at that — has approved the law.

Indeed, the whole idea of judicial review is that the democratically elected members of Congress and the President might be swayed by the popular passions of the day, and therefore only judges appointed for life who are removed from politics should determine whether a statute contravenes the Constitution.  To be sure, it’s not a power the Supreme Court has used routinely, but over the last two centuries the Court has not hesitated to strike down statutes that are found to be unconstitutional.  The Court’s power to do so therefore is, quite literally, not “unprecedented.”

Obviously, the President hopes the Court will rule that the Affordable Care Act is constitutional and enforceable.  However, he does our system a disservice by suggesting that the Supreme Court would be overreaching if it decided to the contrary.  If the Supreme Court takes that step, it is simply exercising one of its constitutional powers — just as President Obama and Congress did in enacting the law in the first place.  That’s how our system is supposed to work.

At A Supreme Court Oral Argument

I’m glad people are paying attention to the arguments to the Supreme Court about the constitutionality of the health care law, and I think it’s great that some people waited in line for days to sit in the seats reserved for the general public.

I’ve had the privilege of watching oral argument to the Supreme Court on two occasions.  It is an awesome experience, from the long walk up the front steps and through the towering pillars to get into the building to the post-argument post mortem that begins as soon as the lawyers walk down those same front steps, debating the potential meaning of the questions posed by the Justices.  In the majestic chamber where arguments are presented, the Justices appear from behind a curtain to take their seats at the long bench, with the Chief Justice seated in the middle.  The lawyers present their positions, the members of the Court ask their probing hypotheticals — often jousting with each other in the guise of questioning the advocates — and the lawyers respond as best they can.  The entire process occurs with great dignity and solemnity, befitting the role of the highest court in the land.

After the arguments on the various legal issues presented by the health care law are concluded later this week, we’ll hear pundits talk about which side gave the better presentation, and we’ll know how the Court rules by the time its term ends in June.  For now, however, I hope people appreciate the marvelous nature of the process.  The fate of a hugely significant and hotly debated law will be decided by unelected judges based in part on oral arguments presented in measured tones in a quiet chamber that is open to all.

I wish more people went to see a Supreme Court argument when they visit Washington, D.C., because it tells you something very positive about our government and the central role of the rule of law in our country.