'Obamacare' Critics Brush Off Judicial Activism Claims

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President Barack Obama came out again Tuesday in ardent defense of his health care law that's currently under scrutiny.

During a meeting with newspaper executives in Washington, D.C., the president said he's confident that the Supreme Court will uphold the law and show traditional restraint and deference to Congress.

"I don't anticipate the court striking this down. I think they take their responsibilities very seriously," he said.

This comes on the heals of statements he made Monday during a White House event with Canadian Prime Minister Harper and Mexican President Felipe Calderon.

He said it would be unprecedented for the justices to strike down a law passed by a Democratically-elected Congress. The president even warned against "judicial activism," which is usually a usually a stance taken by conservatives.

"I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint," Obama said. "That an un-elected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example."

But opponents say that argument is flawed.

Last week, Justice Anthony Kennedy said it's definitely not judicial activism if the Court throws out the whole law.

"I suggest to you it might be quite the opposite," he said. "It seems to me, [it] can be argued at least to be a more extreme exercise of judicial power than striking the whole."

Constitution expert Matthew Spalding of the Heritage Foundation isn't surprised by the president's attack.

"Here you have a president who doesn't like people disagreeing with him, especially when there's a policy disagreement," Spalding told CBN News. "He's calling them un-elected judges. He's pushing back with what sounds like a conservative argument."

The Supreme Court justices spent three intense days last week hearing arguments and scrutinizing the president's health care law. The policy is deemed a crowing achievement for the administration, but has come under fire over its individual mandate requiring every

American to purchase health insurance.

If the court throws out the mandate and leaves the rest, Spalding says the court will have made a whole new law -- which can be considered judicial activism.

"If you take out the mandate, what's left is now a completely different law, which means, as Justice Kennedy points out in the oral arguments, it actually might be judicial activism to leave that in place," he explained. "It's almost better, and more judicially honest, to throw the whole thing out and ask Congress to go back and have a clean slate."

The court has many times thrown out parts of, or entire congressional acts or laws -- at least 158 times prior to 2002, and more since then.

Meanwhile, President Obama's recent remarks have struck a nerve with his critics.

Presidential hopeful Mitt Romney went on record saying if the high court were to strike down the law, it would not make justices part of "an activist court," but rather "a court following the Constitution."

Republican Sen. Orrin Hatch has also weighed in. The top Republican on the Senate Finance Committee said judicial activism or restraint should not be measured by which side wins, but whether or not "the court correctly applied the law."

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Paul  Strand

Paul Strand

CBN News Washington Sr. Correspondent

As senior correspondent in CBN's Washington, D.C., bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, and Congress.  Follow Paul on Twitter @PaulStrandCBN and "like" him at Facebook.com/PaulStrandCBN.