Former Solicitor General and Elegan Kagan successor Neal Katyal took “Obamacare defenders willing to say anything” to a new level on Sunday with this astonishing statement:
The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.
A few thoughts:
1. Katyal, a Constitutional Law professor, is challenging the very concept that a law can be unconstitutional. He insidiously tries to discredit the Court’s role in our tripartite government, and its purpose as a check and balance against Congress and the Executive.
2. The use of “95% of Americans” is both completely disingenuous and inaccurate. Disingenuous because not even 40% of Americans oppose repeal , and inaccurate because when 95% of Americans want a law, they can amend the Constitution to allow for it. Furthermore, what is Katyal getting at here? That he’d prefer the United States operate as a pure democracy, where 50.1% of the population can run roughshod over the other 49.9%?
3. Finally, Katyal is attempting to bias public opinion through the media against the Supreme Court by ostensibly arguing from a position of authority, rather than an open acknowledgment that his position is ideological. Since Obamacare cannot be defended on its own merits, intimidation of the Supreme Court has unsurprisingly become the left’s preferred strategy.