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What Biden should do with a reactionary, radical Republican Supreme Court


The first thing Biden should do as president (should he win) is to announce that he will not permit a cabal of rightwing religious fanatics on the Supreme Court to tell Americans what they can and cannot do.

Nowhere in the Constitution does it say that the United States Supreme Court has the power to undo what the Congress has done. The relevant clauses in our Founding Document are found in Article III. There, Section 1 simply says “the judicial power of the United States shall be vested in one Supreme Court.” It does not specify what “judicial power” means. Section 2 defines the scope of the Supreme Court’s oversight: foreign treaties, disputes between states and so on. And that’s it. Nowhere does the Constitution come even close to saying that the Supreme Court can overturn or nullify a Federal law, such as those permitting same-sex marriage or a woman’s right to choose to terminate her pregnancy.

Why, then, do we assume the Supreme Court has that right? Because of the “doctrine of judicial review.” That stems from an 1803 SCOTUS decision, written by then-Chief Justice John Marshall, in a case called Marbury v. Madison. The details of the case don’t matter; what is of relevance are Marshall’s words: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”

“Emphatically the duty…”. That makes judicial review sound like it was always there in the minds of Jefferson, Madison, Adams, Franklin and the other Founding Fathers, but it wasn’t. The country automatically assumes that because Marshall said the Supreme Court could invalidate Congressionally-approved, Presidentially-signed laws, it could.

But Democrats can follow the Trump playbook in challenging any and all precedents. Trump invented that game; Democrats were caught by surprise. How could he do that? They asked. He could, and he did. Now, if they take power, Democrats can do the same thing. Who says Marbury v. Madison was handed down by God carved onto stone tablets? It wasn’t. It was something this country followed for a long time. Soon, it will be time for a change.

If Coney Barrett is confirmed this Monday (of course, she will be), the future of the Affordable Care Act, of Obergefell (which legalized gay marriage) and of many other laws we thought were decisive and here to stay, will be at risk. Normally, we might say, “Well, I don’t like these Republican Justices, but that’s our system. We have to respect their rulings, and then try to elect Democratic Presidents who will uphold our values.” But these are not “normal” times. In fact, normalcy ended when McConnell blocked Merrick Garland’s appointment to the Court by Obama. That was the most flagrant, egregious thing the Senate has done in my lifetime concerning the Supreme Court; with that declaration of war, McConnell said in effect that all precedent had come to an end. Democrats therefore—if they take power—are fully justified in playing by those same, Republican rules.

Let us suppose, as seems likely, that shortly after the election, the Supreme Court, now with Coney Barrett, overturns the Affordable Care Act. Trump, if he loses, will still have two months in office, so we can expect him to indulge in a frenzied cycle of rulemaking or executive orders by which he will quickly and thoroughly dismantle Obamacare, throwing up to 30 million Americans off their healthcare insurance. The Congress will be in a tizzy, with both sides holding hearings, screaming bloody murder and accusing the other side of bad faith. The result of that turmoil will be that very little will get done concerning healthcare by the time Biden takes the oath of office, on Jan. 21, 2021. That’s when he should announce, in his very first presidential statement, that, while he fully intends to honor Marbury v. Madison and uphold the Supreme Court’s authority, he will not throw tens of millions of Americans off their healthcare immediately, because to do so would cause havoc and be ruinous to the national security.  Instead, Biden should say he is immediately ordering the relevant Congressional committees to begin studying a replacement for the (now illegal) Affordable Care Act.

That process will take a lot of time, maybe a year. In the interim, Biden should declare, via Executive Order, that he is continuing the Affordable Care Act in all its details, until such time as a replacement law is enacted. That will mean (a) Obamacare will continue uninterrupted, and (b) Republicans will howl that Biden is attempting a coup against the Supreme Court. Let them howl. There will be nothing they can do about it. The Congressional committees, now led by Democrats (let’s assume Dems retake the Senate and keep the House) can take their time. Whenever Republicans complain, Democrats can reply that it’s important to get a replacement law right, and for it to be in compliance with whatever the Supreme Court found wrong with the Affordable Care Act. In such a way, President Biden can sidestep the Supreme Court without actually defying it. I think the American people would understand that, and support him.

Of course, Governors in red states might say that they are supporting the Supreme Court decision and immediately ending Obamacare. That’s fine. Let them. That’s for the citizens of Alabama, Oklahoma, the Dakotas, etc. to deal with. When Granny loses her dialysis, when Junior can’t be covered by his parents’ healthcare insurance, when the death rates start climbing, they can ask themselves if this is what they expected when they voted Republican. We will then have a completely unsustainable two-tiered system of healthcare in America; full resolution of the issue will have to be punted for another day. But in the long run, this is not a good issue for Republicans.

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