By Dave Andrusko
“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.”
— From “Obama & the left take on SCOTUS [the Supreme Court of the United States],” a story which appeared in Politico.com.
To quote the immortal Mr. Dooley, “politics aint beanbag.” So when President ObamaCare tells news executives at the annual meeting of The Associated Press Tuesday that the Republican Party and Genghis Khan were separated at birth, well, that is just Obama being Obama in “full re-election mode.”
He was in said mode Monday as well in remarks he made at a joint press conference with the Canadian prime minister and the Mexican president. (As one commentator shrewdly observed, it was a typical Obama stump speech “just a little more dishonest than usual.”) Only this time Obama was not hammering Republicans, he was attempting to intimidate the Supreme Court.
In the style he fine-tuned in Chicago, Obama told reporters that only “judicial activists” could find ObamaCare’s individual mandate unconstitutional. (This, of course, coming from the titular head of a party which nominates only judicial activists to the Supreme Court.)
The paragraph that generated the most buzz was one that gave even liberal pro-abortion Washington Post columnist Ruth Marcus pause. 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.”
Even by Obama’s careless standards, this is not within hailing distance of an accurate presentation. Only Democrats voted for this 2,700 page epic—by a slim 219-212 vote in the House with a number of Democrats defecting and others hiding behind a bogus “executive order.” The package was convoluted and negotiated in secret and so was so un-transparent that then-House Speaker Nancy Pelosi famously said, “[W]e have to pass the bill so that you can find out what is in it.” You would think that the onus would be on the devisers of a bill this stridently partisan, not opponents.
“[W]ould be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress”? Even Marcus couldn’t abide that one. Writing on her blog, she said
That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to ‘a group of unelected people’ precisely to insulate them from public opinion.
There are no end to the ironies in Obama’s comments, or the way some interpreted them. In a separate Politico story, we’re told, for example,
Obama, who taught constitutional law at the University of Chicago Law School, and who has at times been criticized for being professorial took on that tone. “
There was nothing the slight bit professorial about this once-over-lightly treatment that gave the rules of evidence the short-shrift. For example, even a law professor ought to admit that in addition to not being able to win a single Republican in either House, ObamaCare is disliked by the American people who not only want it repealed, but also believe it WILL be repealed.
There are a hundred other angles, but let me mention just one. At least inferentially, Obama’s comments would suggest that government lawyers who defended ObamaCare before the Supreme Court were able to present an air-tight case that only “judicial activists” would find unpersuasive. That simply wasn’t the case; the justices were able to ask questions—vital questions–the Solicitor General couldn’t answer.
Which is why, as we reported yesterday, that while it is true that a majority of people did not change their minds after the Court oral arguments, many did. And overwhelmingly, they were less supportive than they were going in to the six hours of back and forth.
Last point. The Court is supposed to be an apolitical body. The Justices are supposed to weigh a law’s constitutionality, not ask themselves whether a particular part is essential to making it work.
“I’m confident that this will be upheld because it should be upheld,” said Obama. As James Antle wrote, “What we see… is the insistence that liberal policy preferences simply must be constitutional.”
Obviously the way is being prepared to demagogue, should the Court overturn part or all of ObamaCare. The only thing surprising would be if anyone finds this surprising.
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