What Obama meant and should have said about the challenge to the Affordable Care Act before the Supreme Court

President Obama has been pilloried by his critics for saying that a Supreme Court decision to find the Affordable Care Act unconstitutional would be an “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

A Republican-appointed federal judge, Jerry E. Smith of the U.S. Court of Appeals for the 5th Circuit, abused his position by demanding a written explanation of the President’s words, which Attorney General Eric Holder felt obliged to produce and send to the court.

In his response, the Attorney General stated that the President’s statement was consistent with the principles that the judicial review power over legislation is beyond dispute, that acts of Congress are presumptively constitutional, and that the Executive branch has often urged courts to respect legislative judgments of Congress.

In fact, President Obama was engaged in a bit of hyperbole to suggest that the high court overturning the signature legislative achievement of his administration would be unprecedented. The Supreme Court has on more than a hundred occasions declared Congressional enactments unconstitutional, including the original Child Labor Law barring from interstate commerce goods produced by children under 14 working more than 8 hours a day or more than 6 days a week. The Supreme Court also found unconstitutional the first federal Minimum Wage Law, and many legislative enactments of Franklin D. Roosevelt’s New Deal.

What I think President Obama should have said, and meant to say, is that the Supreme Court should not again place itself on the wrong side of history. The Supreme Court justices who voted against child labor laws and minimum wage laws have been judged harshly by history, while the dissenters who voted to uphold those laws, including Justices Louis Brandeis and Oliver Wendell Holmes, have been honored.

The judgment of history may actually be a factor for the swing justices on the high court, who are keenly aware of their place in American history. Do either Justice Anthony Kennedy or Chief Justice John Roberts want to be remembered for striking down the last best hope for repairing our financially unsustainable health care system?

I agree with President Obama that the Supreme Court should, and will, sustain the Affordable Care Act, despite its imperfections. It is and may always be a work in progress requiring regular amendment and tinkering. It is all that is politically possible now in the current hyper-partisan environment. The alternative is the prior status quo, which is headed over the cliff of rising costs.

I wish the President would also support medical malpractice reform to reduce the costs for unnecessary medical tests and procedures ordered solely or primarily to protect health care providers from the constant threat of lawsuits.