Apr 06

The question is not whether President Obama keeps making gaffes and mis-steps lately in public policy or public statements. My question, instead, is…are they calculated and to what end?

This blogger wondered the same thing, particularly about the so-called ‘accommodation’ allegedly adjusting the HHS mandate to suit religious liberty claims.

Has this been Obama’s goal all along – to set such an extreme, unconstitutional standard to begin with that he is now able to set a still unconstitutional standard while the public believes he’s being reasonable?

He’s mis-stepping alright, but more voices are saying his steps are intentional and defiant. Like these Bloomberg News writers.

President Barack Obama has shown a willingness to campaign against the U.S. Supreme Court if the justices strike down his 2010 health-care law. It’s a strategy that’s as risky as it is rare.

With the court months away from a ruling, Obama ratcheted up the political stakes this week by saying a decision to reject the law and its requirement that Americans get insurance would be “judicial activism” by “an unelected group of people.”

Taking on the court would mean fighting an institution that polls show is historically the most admired branch of government.

He’s already made it a campaign strategy to run against Congress, alienating or at least irritating the Democratic leadership in the Senate and all members of Congress in the president’s party. Now, he seems to be running against the Court, making weirdly bad statements about the separation of powers and law precedent, for someone who lectured at the University of Chicago on constitutional law. Washington Times editors give him an F here.

For someone who once taught classes at a law school, President Obama doesn’t seem to know much about the powers of the Supreme Court.

At a press conference Monday, Mr. Obama said he did not think the high court would rule that forcing Americans to buy health insurance was unconstitutional. “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he said.

There’s plenty of precedent for voiding a law like Obamacare. The top justices have invalidated more than 150 federal laws in part or in whole. Nor would there be anything extraordinary about such a step, as courts frequently make these types of rulings. In fact, it would be unprecedented and extraordinary for it to let stand the unconstitutional aspects of Obamacare.

There’s also no truth to the suggestion that Obamacare passed by a “strong majority.” The vote was 219 to 212, a razor-thin margin in which 34 members of the president’s own party voted no. The margin of passage has never been a factor in the Supreme Court’s review of any law. That’s simply not a part of American jurisprudence. In fact, if Mr. Obama believes what he says, he ought to be very satisfied with the validity of the Defense of Marriage Act, which passed in 1996 by a whopping 275 margin in the House and by 71 votes in the Senate.

True, all true. But was it a blunder, or a strategy? That’s what provoked an appeals court judge to issue a testy demand the media called ‘a homework assignment’ to explain the president’s understanding of the courts, the law, judicial review and the separation of powers.

This blogger says it was a counter move that checked the president, who gets low marks on constitutional law.

What if the Supreme Court did not have the power to review laws or executive decisions, to overturn those that are “unconstitutional” – how different might life be in the United States? Until 1803, it was not a foregone conclusion that the Supreme Court of the United States would have that power, despite the fact that judicial review had its origins in early seventeen-century England and had been asserted by James Otis in the period leading up to the American Revolution. A relatively minor lawsuit led to one of the most important Supreme Court decisions in American history, Marbury v. Madison, laying the foundation for the Court’s ability to render its decisions about laws and actions. In Marbury v. Madison, the Supreme Court claimed the power to review acts of Congress and the president and deem them unconstitutional, creating a precedent for an American process of judicial review. Through the decision of Chief Justice John Marshall, then, the court assumed the powers with which it has since played such a vital role in American life.

And the president back-pedaled while DOJ complied with the appeals court judge’s demand for an explanation.

Attorney General Eric Holder made clear Thursday that the Obama administration recognizes the authority of federal courts, including the Supreme Court, to rule on whether the 2010 health care reform law or any other laws passed by Congress are constitutional.

So what did we learn and what did the president accomplish? Well, Americans now know more about Marbury vs. Madison than ever before, safe to say.

And a former Obama student, who later clerked for the particular appeals court judge who challenged the president’s remarks about judicial review, has spoken out about all the media chatter.

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun.  Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise.  Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5.  You’d be a little embarrassed, right?  You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.
 
Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.”  Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas.

Now this is interesting…

(Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.)

Exactly. The student has become the instructor (as has the appeals court judge), and this whole exercise has resulted in the transparency Obama promised in his presidential campaign, in spite of his ongoing efforts to avoid it.

Ironically, just three days before the January 20 HHS mandate was announced, Bill McGurn wrote this WSJ column on the administration’s overreach causing Americans to take a renewed interest in the Constitution. Its scrutiny has only increased since then.

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