President Obama made some
unprecedented and extraordinary statements yesterday about Obamacare and its prospects at the Supreme Court, to which I had to say, Pelosi-style, "
Are you serious? Are you serious?!" For starters, he said:
I am confident 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. ...
As many
have pointed out, this is a laughably unprecedented and extraordinary definition of the words "unprecedented" and "extraordinary." It's as if President Obama thinks the Supreme Court has never struck down a law before! Or that Congress has never passed an unconstitutional law in its history!
After his Solicitor General got terrible reviews for his oral arguments, which some think put the
case in jeopardy, Obama is trying to reframe the debate in case he loses. If Obamacare goes down, Obama wants you to think it is because of an activist, extreme Supreme Court - not because the law itself is an unconstitutional federal intrusion into your life.
And is Obama really calling a bill that had
zero Republican votes and passed 219-212 in the House a "strong" majority? Obama did do better in the Senate, on a 60-39 party-line vote taken on Christmas Eve. But where's that "strong majority" now? Less than a month after the Senate vote, Scott Brown was the first Republican to be elected to the Senate from Massachusetts in decades, in part because he ran as the 41st vote to stop Obamacare. Today, the Democrats are down to 51 Senators and the House saw a 60 person swing and a switch over to GOP control since the vote, which played a huge part in the 2010 elections.
In his weakened state, Obama is reduced to lecturing conservatives on what he thinks we say:
I just remind conservative commentators that for years we have heard 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. ...
Obama seems to think that simply striking down a law passed by Congress is what makes a ruling judicial activism - as if not acceding to whatever the legislative branch wants is judicial excess. But it's not whether a law is upheld or struck down, it is whether the law was Constitutional and whether an originalist or strict constructionalist theory was applied that matters.
Judicial activism is about judges who disregard the Constitution and make up rights out of whole cloth. Like "penumbras, formed by emanations" that magically find
rights to abortion or
separation of church and state hiding in the text of the Constitution all along. It's about
illiterate judges who uphold gun bans despite the
clear wording of the 2nd Amendment. It's about courts that think the the Founders' original intent in the 1st Amendment was to
ban prayer. Obama has no idea what judicial activism is, for him, words only mean what he wants them to mean, only at that particular point in time.
Finally, let's hear why Obama thinks Obamacare should be upheld:
I am confident this will be upheld because it should be upheld. ...
Ok, nevermind, I take it all back - Obama's astounding powers of persuasion and impeccable reasoning skills have convinced me of the error of my ways! He wins!
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UPDATE: Looks like the 5th Circuit Court of Appeals is
taking Obama's words seriously:
In the escalating battle between the administration and the judiciary, a
federal appeals court apparently is calling the president's bluff --
ordering the Justice Department to answer by Thursday whether the Obama
Administration believes that the courts have the right to strike down a
federal law, according to a lawyer who was in the courtroom.
...
In the hearing, Judge Smith says the president's comments suggesting
courts lack power to set aside federal laws "have troubled a number of
people" and that the suggestion "is not a small matter."
The
bottom line from Smith: A three-page letter with specifics. He asked
DOJ to discuss "judicial review, as it relates to the specific
statements of the president, in regard to Obamacare and to the authority
of the federal courts to review that legislation."
"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," Smith said. "What is the authority is of
the federal courts in this regard in terms of judicial review?"
I'm glad there are consequences for Obama's irresponsible words. This is part of why the Founders' system of checks and balances is so brilliant. Instead of each branch colluding with each other, they are pitted in competition with each other, with each not wanting the others to overstep their bounds and encroach into their territory. Here the judiciary branch is pushing back against an executive assault on its Constitutional powers. This system is meant to break allegiances across the branches on partisan lines, but alas that has been happening far too often these days.
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