Judicial review, Chicago style

When it comes to jurisprudence, Barack Obama is a partisan of the Chicago school. Help friends. Hurt enemies. Take control. That’s what Obamacare is all about, as we have seen in the ongoing battle between Obama and the Church.

Obama stated one version of the Chicago doctrine during the 2008 campaign: “If they bring a knife to the fight, we bring a gun.” It’s not an original thought; Obama was borrowing it from David Mamet’s screenplay for The Untouchables, where it was described as “the Chicago way.”

I take it that’s what’s going on in Obama’s comments earlier this week on the Supreme Court’s consideration of the Obamacare case pending before it — that it would be “unprecedented” for the Court to strike down a law passed by a “strong majority” in Congress. Here are Obama’s remarks from this past Monday in full:

I’m actually – continue to be confident that the Supreme Court will uphold the law. And the reason is, because in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way. That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important, because I watched some of the commentary last week, to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of pre-existing conditions. The law that’s already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with pre-existing conditions who have health care right now because of this law.

Parents don’t have to worry about their children not being able to get health care because they can’t be prevented from getting health care as a consequence of a pre-existing condition. That’s part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that’s just the part that’s already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

And I think it’s important – and I think the American people understand, and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care.

So there’s – there’s not only an economic element and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.

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 – this court will recognize that and not take that step.

I think it is a serious mistake to take these comments at face value. Obama knows his disparagement of judicial review is a joke. He taught Roe v. Wade, in which the Court struck down the “duly constituted and passed law[s]” of 50 states. It sounds like Obama must think Roe v. Wade was an illegitimate exercise in judicial imperialism. But no, it’s one of the pillars of the modern Democratic Party.

Obama’s remarks are bare-knuckles politics. I believe they convey the message that Obama is diffident about the outcome of the case before the Court and that if he loses, he will make the Court the issue.

Obama conveys several messages in his remarks. Obamacare is an act of great beneficence. It is already dispensing benefits to the people. The mandate is the linchpin — don’t strike it down. But if it goes, the rest should survive. These are messages to the Court along with a threat. If the Court strikes down the law, he will turn up the heat against it. His remarks call to mind Obama’s castigation of the Court for the Citizens United decision in his January 2010 State of the Union Address, with the justices sitting before him, and with about the same truth quotient.

Obama’s remarks also calls to mind FDR’s 1937 threat to pack the Court. FDR’s Court-packing plan went nowhere and damaged FDR. But he got the last laugh when the Court adapted constitutional law to suit his schemes.

Obama staked his first term on Obamacare. He threw away large Democratic majorities in the House and the Senate for its sake. He thought the law would be popular, but it isn’t and never has been.

I do not think that Obama’s message to the Court will have the intended effect. On the country, I think that Obama’s message to the Court will backfire. I am beginning to harbor the thought that this guy is a loser.

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