The mounting legal challenges to the constitutionality of President Obama's healthcare reforms ultimately will be defeated in the Supreme Court, according to Lanny Davis, who served as White House counsel for former President Bill Clinton.
Davis, a Washington, D.C., attorney and columnist whose work is published by Newsmax, calls the constitutional challenges to the individual mandate "a reasonable argument that's going to lose."
In an exclusive interview, Davis tells Newsmax.TV that the Supreme Court has recognized the legislative branch's authority to promote the general welfare of the country under article 1, section 8 of the U.S. Constitution.
He points out, for example, that the federal imposition of general-welfare child labor laws was ultimately upheld.
"Since then, in general, most conservatives would say that the legislative branch of government … as well as the executive branch, have a right to make policy decisions about what's in the general interest of the country," he says.
"And the unelected branch -- the judiciary -- has shown restraint in overturning those political and policy judgments of the legislative branch," Davis says. "I think that under the name of the Commerce Clause -- and that overall doctrine of deference to the Congress -- that conservative jurists as well as liberal ones will uphold, or should uphold, this… "
Davis conceded, however, that it will be up to "the individual judgment of each Supreme Court justice" to determine whether Commerce Clause -- the article 1, section 8 provision authorizing the federal government "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes" -- bestows enough authority for the federal government to require states and individuals to comply with healthcare reform's various mandates.
Davis, who was also appointed by former President George W. Bush to serve on the Privacy and Civil Liberties Oversight Board, cites minimum wage laws as an example of the courts agreeing that the legislative branch can exercise its authority to regulate commerce across state lines.
Davis also acknowledges that the precedent of United States vs. Lopez, a 1995 case that marked the first time since WWII that the Supreme Court set limits on the federal government's powers under the Commerce clause, suggests the Court also could tilt in the opposite direction.
In United States vs. Lopez, the Court decided by a 5-to-4 margin that a federal law banning possession of firearms near schools lacked enough relevance to interstate commerce to be Constitutional.
"So I do agree that the line drawing of where the commerce clause should end or begin has been difficult over the years," Davis tells Newsmax.
He adds, however, that the individual mandate to buy insurance is "the policy judgment made by an elected branch of government. If people don't like it then vote the bums out and repeal the law. But I don't think the courts are the best place for that position [or] decision to be made," Davis says.
That said, Davis concedes that there are plenty of reasons for conservatives acting in good faith to oppose the legislation.
"But we did have an election in 2008," he tells Newsmax. "Barack Obama ran precisely on this bill. He actually stood up to his liberal base, and said no to a public option, and stayed with an all-private insurance system, which is more of a conservative tilt to the bill than a lot of liberals like myself wanted. And elections do matter, and that's the ultimate poll."
Other highlights of Davis' exclusive interview on Newsmax.TV:
- He wishes the reform legislation had included tort reform. "I actually am sorry that tort reform wasn't in this legislation. I'm a liberal democrat but I think we do need tort reform, and that should be on the agenda of president Obama coming up, because he said we need tort reform."
- Davis says he is "very sorry" that the debate over healthcare reform has exacerbated the partisan divide. "But look, bipartisanship by its very nature is two-sided," he says. "You have to have two people to tango, and it takes Republicans to agree to sit down as well as Democrats. You've got to have both sides. And honestly I think both sides are at fault here." One idea he finds intriguing: Seating members of Congress alphabetically rather than by party "to get them to talk and interact with each other, rather than seating them by party."
- He believes the administration used "excessive" language in condemning Israeli developments in East Jerusalem. But he remains confident that U.S. support for Israel remains rock solid. "I believe the administration, despite its overheated language in my opinion, still is going to in America's interest maintain our loyal and faithful ally Israel as a close friend of the United States, especially given the threat from Iran of developing nuclear weapons," he tells Newsmax. "We're certainly going to need all the allies we [can get] in order to convince Iran not to do that."
- Davis is torn over whether the U.S. should respond militarily to the Iranian nuclear threat. On the one hand he says the United States "cannot afford to allow Iran a nuclear weapon." But he adds, "I still wonder whether there is an effective way militarily of preventing them from developing the military capability of putting the pieces together."
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