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Wednesday, April 4, 2012

I'm confident that the "Affordable Health Care Act" will be upheld because it should be upheld

Obama said he was confident the Supreme Court "will not take what would be an unprecedented extraordinary step of overturning a law" passed by Congress.

"I think it's important and I think the American people understand and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care," 

 "So, there's not only an economic element to this and a legal element to this, but there's a human element to this and I hope that's not forgotten in this political debate."  Conservative Sen. Orrin Hatch, R-Utah, says "it must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.  Judicial activism or restraint is not measured by which side wins but by whether the court correctly applied the law"

The three-judge appellate ordered the Justice Department to address whether the Executive Branch believes courts have the power to strike down laws it interprets as unconstitutional.  Appeals Court Judge Jerry Smith, a Reagan appointee, asked if DOJ agreed that the judiciary could strike down an unconstitutional law.  The DOJ lawyer, Dana Lydia Kaersvang, answered yes and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago.  The other two judges Emillio Garza and Leslie Southwich, both Republican appointees, remained silent.

The Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this,"  I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has," Mr. Obama said.

Smith requested a letter asking “What is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president?  What is the authority is of the federal courts in this regard in terms of judicial review?"  In asking for the letter, Smith said: "I want to be sure you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases."  Some conservative legal sources privately expressed disappointment in the appeals court's order, saying it appeared punitive and petty to demand the Justice Department defend a position it had never disputed in court.
"It was like he [the judge] was giving a homework assignment to an unprepared student," said one right-leaning lawyer, who opposed the law. "It has the effect of putting the judiciary on the defensive, and could give rise to concerns the courts will look at the law from a political, not constitutional perspective."

David Cordani is the CEO of Cigna, the nation's fourth-largest health insurer. He says the insurance industry started changing itself before the Affordable Care Act became law in 2010. And the changes will continue regardless of what happens at the high court.  "The broader health care debate is way larger than the individual mandate,"

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