Obama vs. the Supreme Court, round 2


President Obama’s reckless and foolish attack on the Supreme Court drew an immediate response from the 5th Circuit Court of Appeals, as reported by Fox News:

A federal appeals court is striking back after President Obama cautioned the Supreme Court against overturning the health care overhaul and warned that such an act would be “unprecedented.” 

A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law. 

One justice in particular chided the administration for what he said was being perceived as a “challenge” to judicial authority — referring directly to Obama’s latest comments about the Supreme Court’s review of the health care case. 

The testy exchange played out during a hearing over a separate ObamaCare challenge. It marked a new phase in the budding turf war between the executive and judicial branches. 

“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?” Judge Jerry Smith asked at the hearing. 

Justice Department attorney Dana Lydia Kaersvang answered “yes” to that question. 

A source inside the courtroom, speaking to Fox News afterward, described the questioning by Smith as pointed. 

The magnitude of what is transpiring here cannot be overstated.  The President of the United States launched a wild attack on the very structure of our government, taking a verbal redaction marker to the parts of the Constitution that stand in his way.  A federal court is now, appropriately, treating him like a spoiled and dangerous child.  They might as well have demanded Obama write “I WILL NOT CHALLENGE THE LEGITIMACY OF THE SUPREME COURT” a hundred times on a blackboard.

Obama has already begun to walk back his comments.  Here’s a quick reminder of his exact words, to help you peer through the billowing clouds of spin pouring from the Administration:

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.

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. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.

As I said, we are confident this will be over — this will be upheld. I am confident this will be upheld because it should be upheld. And again, that is not just my opinion. That is the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they’re not particularly sympathetic to this piece of legislation or my presidency.

(Emphasis added to the parts that the Obama 2012 campaign needs you to forget, pronto.)  Obama was challenged on these statements at the Associated Press luncheon on Tuesday, by Associated Press chairman Dean Singleton.  Here is the exchange, courtesy of a transcript from the Washington Examiner.  The President’s answer rambles on for a long time, so we’ll focus on the important part.

MR. SINGLETON:  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.  If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?

THE PRESIDENT:  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.

And the point I was making is that the 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. 

That’s not what he said originally, nor did he imply anything of the sort.  He very clearly said that he thinks “overturning a law that was passed by a strong majority of a democratically-elected congress” (a risible description of ObamaCare, which barely squeaked through Congress, its passage greased by back-room deals) would be an “unprecedented and extraordinary” step. 

Obama originally went on to describe this “unprecedented” exercise of Supreme Court power as “judicial activism,” which is bad because it would be “a good example” of “an unelected group of people would somehow overturn a duly constituted and passed law.”  Nowhere did he mention economic ramifications – he was quite clear about his ugly insinuation that the Constitutional limits on government should be over-ridden by The Will Of the People, and Barack Hussein Obama is the avatar of that will, no matter what those silly polls showing huge majorities opposed to ObamaCare might say.

In any event, this “economic issue” restraint on the Supreme Court is arrant nonsense, unworthy of a first-year student, never mind an alleged professor of Constitutional law.  You will search in vain for any such restriction in the Constitution.  It’s also logically absurd.  Obama is saying the Court has no power to strike down really huge laws as unconstitutional.  If they’re small, and don’t have profound economic ramifications, then maybe that would be okay, but ObamaCare is such a mighty exercise of political power by two branches of government that the third branch can only gape in silent wonder at its audacity. 

The President is graciously willing to concede that the Supreme Court just might have the legal authority to rule on the constitutionality of Really Big Laws – a concession that is absolutely nowhere to be found in his original, controversial remarks – but it would be ethically improper for them to ignore the “restraint” his will to power has conjured for them.

Obama went on to reinforce these bizarre points at great length, emphasizing “the human element” of his power grab by droning on about the “letters he gets every day from people who are affected by the health care law right now, even though it’s not fully implemented.”  Presumably the letters from the huge majority who demand ObamaCare’s repeal never make it to his desk… or, more to the point, such letters would not count even if he read them, because the needs of the State’s new dependents take absolute priority over the economic liberty or legal concerns of our dwindling provider class.

Asserting the power of such anecdotes only reinforces the offensive, anti-Constitutional absurdity of Obama’s philosophy.  The laws binding our government were not meant to be shredded because a few people really, really, really want them to go away.  They don’t dissolve under the intensity of our ruling elite’s taxpayer-funded compassion.  ObamaCare is an utter disaster, but even if it was functioning the way the President and his Party assured us it would, that doesn’t automatically make it legal. 

The entire point of constitutionally restrained government is to thwart the ambitions of the ruling class.  Of course they’ll always be able to come up with sweet-sounding justifications for their ambitions, or line up vocal minorities who passionately support them!  Every tyrant in history has spoken of the “greater good” and “enemies of The People.”  Few words come more easily to their lips.

Politicians are supposed to respect these limitations on their power in a constitutional republic, not seek to undermine or destroy them at every turn.  Imagine the reaction of our Founding Fathers if they were told an American president and his allies would force a blatantly unconstitutional law through Congress in a midnight rush, then defend it by saying it’s just too darn huge to undo, even if it’s both a failure and illegal.  It was a dereliction of duty for the Democrats to put the Supreme Court in this position, and now they dare to use political muscle to influence its decisions? 

The entire point behind making the Supreme Court a lifetime appointment was to insulate the Justices from any Barack Obamas who might happen along, thundering about their righteous imperatives, desperate supporters, historic achievements, and morally irresistible justifications for power.  There will always be lots of reasons for making the government larger, advanced with breathless passion by those in love with its potential.  That’s why we have a small, powerful, brilliantly written set of reasons for saying “no.”