By Dave Andrusko
While President Obama has revised and extended his controversial remarks about “judicial activism,” his ever-so-slight rollback does not change one iota the fact that he had publicly second-guessed and prejudged a decision mere days after the Supreme Court had heard oral arguments on the constitutionality of ObamaCare. A handful of the usual media sympathizers gently chastised Obama for his roughhousing with the Constitution’s separation of powers but that was all for show.
In remarks made Monday at a press conference Obama threw out the idea that only “judicial activists” could find ObamaCare’s “individual mandate” requirement unconstitutional. Specifically, in an oft-quoted riff, Obama 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. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”
Tuesday he walked back a half step, “clarifying” that
“[T]he Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but 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. And so the burden is on those who would overturn a law like this.”
Of course. At the same time, deference is not turning a blind eye to laws justices conclude are unconstitutional. Nor does what was obviously a for-public-consumption-only remark change what news stories have been reporting on for weeks: that Obama’s message is (as POLITICO describes it ) “The Roberts Court is on trial.”
Obama is not alone in this enterprise (cynical even by his standards), according to POLITICO’s Carrie Budoff Brown and Jennifer Epstein:
“President Barack Obama has joined a growing number of Democratic lawmakers, left-leaning commentators and progressive activists who are warning the Supreme Court on the health care law: Don’t you dare overturn it.
“Obama made an unusual pre-emptive strike Monday that previews the Democratic strategy if the high court nixes all or major parts of his signature domestic achievement. His volley, coming less than a week after the oral arguments wrapped up and while the justices are still deliberating, injects a high-level dose of politics into the most anticipated ruling since the court settled the 2000 presidential race.”
The judiciary is not responding well to Obama’s veiled threats. During oral arguments in Houston (in a separate challenge to another aspect of ObamaCare), U.S. 5th Circuit Court of Appeals Judge Jerry Smith said Obama’s comments troubled a number of people who have read them as a challenge to the authority of federal courts. Here’s a partial transcript which culminates in a remarkable demand from Judge Smith.
Judge Jerry E. Smith: Let me ask you just something a little bit more basic. 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?
Dana Lydia Kaersvang [an attorney with the Justice Department]: Yes, your honor, of course there would need to be a severability analysis, but …
Smith: I’m referring to statements by the president in the past few days to the effect— and I’m sure you’ve heard about them — that it’s somehow for what he termed unelected judges to strike acts of Congress that have enjoyed — he’s referring of course to Obamacare — to what he termed a broad consensus and 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.
Kaersvang: Marbury vs. Madison is the law, your honor. It does not make sense in this circumstance to strike this statue because there’s no…
Smith: I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president. Stating specifically and in detail, in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statement and again to the position of the attorney general and the Department of Justice.
Ironically, in a speech delivered Tuesday, GOP presidential candidate Mitt Romney accused President Obama of “hiding” what he would do in a second term. “He wants us to reelect him so we can find out what he will actually do,” Mr. Romney told a gathering of newspaper reporters and editors at a Washington hotel in the nation’s capital. “With all the challenges the nation faces, this is not the time for President Obama’s hide-and-seek campaign.”
However that may be true in other areas, when it comes to his “signature domestic issue”—ObamaCare—the President is up front and VERY personal.
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