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Obama Walks Back Supreme Court Threat, Still Gets It Wrong

Yesterday Barack Obama launched an attack on the Supreme Court that bordered on the bizarre. Apparently unaware of the most basic principles of constitutional law, going back to Marbury v. Madison in 1803, he said:

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 — 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, uhhh, an uninelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.

Putting aside the fact that Obamacare passed with anything but a “strong majority” of Congress, the concept of judicial review has been established for over 200 years; for a president not to understand this displays shocking ignorance. Not to mention the fact that most of the liberals’ favorite Supreme Court decisions involved overturning laws that were enacted by democratically elected Congresses or legislatures, e.g., Roe v. Wade, Lawrence v. Texas and many more.

Obama’s comments were so ill-informed that they prompted an angry response from a panel of the 5th Circuit Court of Appeals:

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.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would 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.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, suggesting it wasn’t clear whether the president believes such a right exists.

So today, in his appearance before the Associated Press–the ultimate friendly audience–Obama tried to walk back yesterday’s blunder in response to a softball question:

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.

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.

This is, of course, entirely different from what Obama said yesterday, but it comes no nearer the truth. First of all, when did Obamacare become an “economic issue,” a matter of “commerce”? I thought it was all about women’s health care, like Roe v. Wade. Evidently that was a misunderstanding.

But that’s a minor point. Is there any truth to Obama’s claim that the Supreme Court hasn’t invalidated any statutes that are “economic” and relate to “commerce” since Lochner v. New York, which was in 1905? Of course not. To name just a few examples a great deal more recent than 1905, the Court ruled unconstitutional provisions of the Sarbanes-Oxley Act that had permitted only “for cause” removal of members of the Public Company Accounting Oversight Board in 2010; the 1990 Mushroom Promotion, Research and Consumer Information Act in 2001 (this case was actually quite similar to Obamacare because the Court held unconstitutional provisions that required mushroom growers to contribute to mushroom promotion programs); provisions of the Patent and Plant Variety Remedy Clarification Act, the Trademark Remedy Clarification Act, and the Copyright Remedy Clarification Act in 1992; the Harbor Maintenance Tax Act in 1998; the Transfer Act which authorized the transfer of operating control of Washington National Airport and Dulles International Airport from the Department of Transportation to the Metropolitan Washington Airports Authority in 1991; and many, many more dating back to 1905.

One could be charitable and say that Barack Obama is a bullshitter who makes stuff up whenever he is in a tough spot, or one could say that he is a habitual liar. Take your pick.

UPDATE: Steve and I were working on posts on this topic simultaneously; his is here.

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