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  • Obama Stumbles While Stepping Back on Supreme Court Comments

    Although the Supreme Court Justices are tight-lipped, most everyone else has condemned President Obama for the attack he launched at the judiciary on Monday.  Even the Washington Post editorialized that “the comments strayed perilously close to a preemptive strike on the court’s legitimacy.”

    On Monday, Obama – who often is described as a former professor of constitutional law –  made comments that demonstrated little knowledge of the concept of judicial review, while demonstrating great contempt for proper separation of powers.  Obama stated that to find his administration-defining health insurance legislation as unconstitutional would be an “unprecedented, extraordinary step” and a foray into judicial activism.

    On Tuesday, the President attempted to revise his statement.  His comments were actually an entirely new, and equally inaccurate, critique.  Obama claimed that “we have not seen a court overturn a law that was passed by Congress on [an] economic issue, like health care” and that it dates back to the case of Lochner v. New York, decided in 1905, but, according to Obama, was a “’30s, pre-New Deal” case.

    Obama’s Lochner reference was way off. And this isn’t the first time that he’s made that mistake. Constitutional history is not Obama’s strong suit, to say the least.  As James Taranto of the Wall Street Journal explained, in Lochner, “the court invalidated a state labor regulation on the ground that it violated the ‘liberty of contract,’ which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause.”  The case had nothing to do with federal “economic” laws.

    Furthermore, as Jennifer Rubin of the Washington Post noted, there is no “economic laws” category in constitutional analysis.  Even if he meant to refer to the Commerce Clause, he would still be wrong.  The landmark cases of United States v. Lopez in 1995 and United States v. Morrison in 2000 tackled many of the same questions present in the current ObamaCare litigation, and in both instances, the Supreme Court struck down laws that Congress claimed were affecting interstate commerce.

    Even if some may give Obama credit for toning down his rhetoric that striking down the law would be “unprecedented,” he still failed to address his comments on “judicial activism” and how “an unelected group of people would somehow overturn a duly constituted and passed law.”  He equated this complaint with that of conservative legal scholars who have condemned unaccountable judges that legislate from the bench.

    Thanks to Obama’s comments, we are now looking at a Constitutional Law 101 question: Can the judicial branch invalidate a federal law on constitutional grounds?

    The 1803 landmark case on judicial review, Marbury v. Madison explained that it is within the power of the judiciary to determine if laws passed by Congress meet constitutional muster.  And for the last 200+ years, the Supreme Court has followed that principle (for example, in United States v. Stevens, the Court struck down a federal law banning depictions of animal cruelty; in Reno v. ACLU the Court held as unconstitutional a federal law prohibiting the transmission of obscene or indecent communications over the internet to anyone under eighteen; in Trop v. Dulles, the Court invalidated a federal law that authorized revoking citizenship as punishment for desertion from the Army during wartime).

    The problem is that Obama is confusing the mere overturning of a law with judicial activism.  As Heritage Fellow Robert Alt has explained:

    [J]udicial activism occurs when judges write subjective policy preferences into their legal decisions rather than apply the constitutional or statutory provisions according to their original meaning or plain text.  Judicial activism may be either liberal or conservative; it is not a function of outcomes, but one of interpretation. Judicial activism does not necessarily involve striking down laws, but may occur when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution.

    But the President’s criticism in his remarks Monday, which he did not adequately address at his second go-round, are far less nuanced: In his view, adherents to judicial restraint should uphold all laws passed by Congress.

    And if the President was actually opposed to the same “judicial activism” that Alt described, then he contradicted himself in practically the same breath.  Obama said:

    And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.  So there’s not only [an] economic element to this, 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. (emphasis added).

    What Obama is asking the Justices to do is radical: Do not restrict your analysis to the law, but also consider economics, the “human element,” and the politics in play.  These rank near the top of the list of factors that Justices of the Supreme Court should avoid taking into account when deciding if a law is unconstitutional.  These are the policy preferences and lack of objectivity that Alt condemns, and that Justice Sotomayor claims are inevitable.

    President Obama, while condemning a skewed view of “judicial activism” and encouraging actual activism by the Supreme Court, has already outlined a judicial regime that is far more “unprecedented” than anything that the Court will do with the ObamaCare cases.

    Posted in Featured [slideshow_deploy]

    22 Responses to Obama Stumbles While Stepping Back on Supreme Court Comments

    1. Unknown says:

      Well, you see, this is from a guy who doesn't know how many states make up the United States of America. Um, 57?

    2. tvannest says:

      Can we please, for the sake of accuracy (regardless of Left/Right setting up an argument about Obama) stop calling Obama a "constitutional scholar" or someone who taught constitutional law at U of Chicago. Obama was a LECTURER at UofC. Anyone with a smattering of experience in academia knows that the standards for, and role of a Lecturer is not the same as for a full-time faculty member/professor. Lecturers are chosen, not on their measured expertise, but based on having a bit of grounding in the field and (most importantly) bringing a perspective that will expand or direct thinking among students enrolled in the class (or creating a class to give new perspective and enlarge the curriculum offerings). On this standard, colleges often pick lecturers to be provacative or to sample broader thinking. Trying to use Obama's experience at UofC to create some credible or even mistaken basis of expertise–depending on your political leanings is silly. Someone just thought he was "interesting." Interesting he has been for America, huh?

    3. Marvin says:

      I guess that should be our first hint as to why Obummer lost his law license. He misquotes law every time he opens his big mouth.

    4. Don D., MN says:

      In their feeble attempt, El Presidente O'boso and Eerie Holder, to justify the attack on the Supreme Court has only made them sink deeper into the mire. Either "The Gifted One" out and out lied or he's the worst constitutional law professor ever. I e-mailed my congressman (a democrat) and told him if he really cared about our country and his constituents he should initiate censure proceedings against the president.

      With the attacks on Christians. capitalism, and now the Courts (the 3 C's) maybe it's time for us to fly the American flag upside down, not only in protest, but our country is truly in trouble with its leadership!

      I wonder if it possible for the Supreme Court to issue a contempt of court charge to "The Gifted One"?

    5. Don D., MN says:

      In their feeble attempt, El Presidente O'boso and Eerie Holder, to justify the attack on the Supreme Court has only made them sink deeper into the mire. Either "The Gifted One" out and out lied or he's the worst constitutional law professor ever. I e-mailed my congressman (a democrat) and told him if he really cared about our country and his constituents he should initiate censure proceedings against the president.

    6. Ted Rink says:

      I find it extremely difficult to believe Obama ever taught Constitutional Law, let alone ever having taken a course in it! Let's see a transcript of his academic achievements.

    7. Franklin says:

      It is unfortunate that desperation to subvert the constitution has driven an erstwhile constitutional lawyer to contradict himself in manner that could only be associated with lay men on law and constitutional matters. And, I am wondering why the President would make such a preemptive statement. It is so sad…… What a president… Sounds so much like being in Africa.

    8. Ted Rink says:

      I find it difficult to believe that Obama was a professor of Constitutional Law, let alone ever having taken the course. Let's see his college trranscripts!

    9. Tinman says:

      First of all, this is not a 'political debate', it is judicial review of a law that was hastily written and passed by a majority of congress along political lines. Call him what you like, obama was never a 'constitutional law professor' and with each passing day shows his lack of understanding on the subject. His remarks on this subject show his desire to be 'fair' in every facet of his administration and fortunately 'fairness' isn't requisite in the highest court's ruling. Everyone is tittering about the possible 5 to 4 ruling in the case, frankly, I want to know why kagan is hearing the case in the first place since it is evident that she, as obama's solicitor general, prepared the ground work for it's eventual court defense in the first place.

    10. W. A. Peterson says:

      God save the court. God have mercy on our nation. Thank you Heritage for the wonderful on-going education you give to us all on these issues. I have four young boys of my own who want to know the how's and why's of the foundation of this great country of ours. You help us, as parents, to help them grow to know and love our country that much more. We'll keep reading and following. We'll keep telling our friends about Heritage. And, God save the court.

    11. Anthony says:

      All of the students who sat in Obama's Constitutional Law classes should ask for their money back.

    12. In order for the Statist to further advance the cause for empowerment over the individual it must manipulate and control the free market economy disavowing the individual of property rights. The end goal for the Statist is the complete dependency of the individual upon government for their sustanence. What bigger advance toward those ends, beyond controlling a sixth of economic activity, than empowering their army of unelected, unaccountable bureacrats to control the individual's health care decisions to the point of life and death decisions over themselves and their families? Of course Obama would use inaccurate, misleading, non-factual, emotional arguments to advance this radical change. He can't be honest about the true intent of this law for fear of massive citizen backlash at the polls this November.

    13. JSK says:

      Oh the irony of a supposed professor of constitutional law demonstrating both his ignorance of the law and his contempt for the constitution he has sworn to uphold. How much more do independents really need to see/hear from this guy before making their decision? Te RNC ought to play this contemptuous video clip over and over u ntil Nov 6th.

    14. @pcg646 says:

      The emperor has no clothes. Obama is a pretender and liar. He will be gone in November`12.

    15. Blair Franconia, NH says:

      Obama's a liar.

    16. allen says:

      Once a President LIES he will always lie. To get His Bills passed or re-elected. How this man got elected? " HE LIED". The worm is starting to turn.

    17. Richard Speer says:

      While the Court is currently deciding the Constitutionality of The Affordable Care Act, aka "Obama Care", based on violations of the 10th amendment, there are other issues that need to be addressed. This law also violates the 1st, 4th, and 5th amendments at a minimum. Striking down this Act would could not in any way be described as judicial activism, rather, it would be entirely in keeping with the Courts responsibility to review and rule on the "Constitutionality" of the Act.

    18. Laura Henning says:

      Putting it very simply, on Monday Obama stated the tasks of the Supremes do not include the overturning of laws because they are unconstitultional. The next day in a nonsequitar he tries to walk that back by attacking them for judicial activism. He either does not have a fundamental understanding of the law or he does but is purposely trying to muddy the legal waters and confuse the American public.

    19. BW in Florida says:

      Obamacare is a debtor's prison where everyone has to complete a minimum mandatory sentence for someone else, without any crime or due process.

    20. Bobbie says:

      How embarrassing for America and the good of her name and people!
      Where was his rhetoric and ignorance educated? Harvard? Sure gives any school he went to a bad name!

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