Sunday, April 8, 2012

President Obama's Shocking Disregard for the Constitution

I was listening to a live telecast of President Obama giving a speech about the Health Care law (Obama-care) whose constitutionality is currently being decided by the US Supreme Court. One of the things he said was that 9 unelected people should not have the power to overturn a law passed by elected representatives and that if the Justices of the Supreme Court did so, it would be without precedent. I was absolutely shocked that the President of the United States could be so wrong about something so important. It is doubly troubling since Barack Obama taught Constitutional law as a Professor before entering politics. Either he was the most inept law professor of all time or he has a serious contempt for our Constitution. President Obama is now being forced to modify his absurdly wrong claim that it would be "unprecedented" for the Supreme Court to strike down the new health care law.

Here is exactly what he said: "Ultimately, I'm 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."

Well, no. There are many precedents for the Supreme Court voiding laws passed by Congress. In fact, overturning unconstitutional laws has been part of the Supreme Court's job description for more than two centuries. And the health care law wasn't passed by a "strong" majority, either. In the House, the final vote was 219 to 212, with all Republicans and even 34 Democrats voting in opposition.Unprecedented indeed! Give me a flipping break! How dare he even try to get away with such a false (stupid) claim?

The first precedent for overturning a law — as I learned in my high-school civics class — was in 1803 when the high court declared a portion of the Judiciary Act of 1789 to be unconstitutional. That was the landmark case of Marbury v. Madison. Chief Justice John Marshall declared for the court that judges must decide what the law is, and must be guided by the principle that the Constitution overrides any act of the legislature.

Surely the President knew that when he spoke; he was a senior lecturer in constitutional law at the University of Chicago, after all. And as recently as January 2010, the president complained in his State of the Union Address about a much more recent precedent. In his words, "the Supreme Court reversed a century of law" through its decision in Citizens United v. the Federal Election Commission, holding that the government may not keep corporations or unions from spending money to support or oppose candidates in elections (a decision which, by the way, I did not like either but which I certainly respected and accepted).

So if the president knew perfectly well that it would not be "unprecedented" for the court to strike down a law, why did he say it was? The following day Obama was challenged by the outgoing chairman of The Associated Press, Dean Singleton, who asked: "Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence."

The president then attempted to walk back what he had said earlier, stating that he referred to overturning laws "on an economic issue," (no, Mr. President, you did not say that) and said the court had not done that since the 1930s (even if you accept that tripe, that is still a precedent isn't it?).

Here is how he tried to answer: "Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre New Deal."

The "Lochner" reference is to an era in which the court tended to overturn laws held to infringe on individual or property rights. The president went on to say that "the Supreme Court is the final say on our Constitution and our laws," in effect taking back his "unprecedented" remark. He explained that he had been trying to make the point that "it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress." -Oh, I see, so now you are merely trying to use your office to influence and threaten the Justices? Is that it, Mr. President? That makes it OK then. -Not!

Even if you accept the President's clarification: "significant restraint" is a far cry from "unprecedented." Furthermore, it is a matter of opinion whether the health care law's requirement for individuals to obtain health insurance is an "economic" issue that falls under Congress' right to regulate interstate commerce, as the law's defenders argue, or a matter of individual rights, as its opponents say. That's the very question before the court.

The matter hasn't ended. Also on April 3, a judge on the 5th U.S. Circuit Court of Appeals in New Orleans took the Department of Justice to the woodshed over the president's remarks. He demanded that the DOJ explain them — by noon on April 5 — and in no less than three pages, single-spaced.

The exchange between Judge Jerry Smith (a Reagan appointee) and Justice Department lawyer Dana Lydia Kaersvang was transcribed by the Wall Street Journal's Law Blog:

Judge Smith: "Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?"

Kaersvang: "Yes, your honor. Of course, there would need to be a severability analysis, but yes."

Smith: "I'm referring to statements by the president in the past few days to the effect … that it is somehow inappropriate for what he termed "unelected" judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obama-care — what he termed broad consensus in majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that's not a small matter. So I want to be sure that you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases."

The Attorney General did, in fact, write that letter and acknowledged that the Court has the power and duty to review laws passed by the legislature and determine if those laws are constitutional.

This whole matter is very worrisome and very serious. It is not going away anytime soon (although I would bet Mr. Obama wishes it would). The President misstated the facts (and stirred up avoidable trouble for himself) when he said it would be "unprecedented" to overturn a law passed by Congress. As I said, either he has no grasp of the duties and functions of our Supreme Court (hard to believe about some one who actually taught Constitutional law) -or he has displayed utter contempt for the Constitution -and that, Mr. President, is something you swore an oath to uphold and defend. 

One last little point. I think it might be good for the President to remember Representative Phil Hare (D-Ill.). Mr. Hare was challenged on the constitutionality of a subject at a 2010 town hall. In reply he said: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by someone more constitutionally attuned -the owner of a local pizza shop.

Live Long and Prosper...

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