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Obama should know better on Supreme Court's role

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#1 Joker

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Posted 04 April 2012 - 02:37 PM

Editor's note: Stephen B. Presser is the Raoul Berger professor of legal history at Northwestern University School of Law and a professor of business law at Northwestern University's Kellogg School of Management. He signed two of the amicus briefs submitted to the Supreme Court challenging the health care law.

(CNN) -- In what must be the most extraordinary statement of his presidency, Barack Obama on Monday blasted the possibility that the United States Supreme Court might overturn the Affordable Care Act. Obama said the court would take an "unprecedented, extraordinary step" if it overturns the law, because it was passed by "a strong majority of a democratically elected Congress."

Setting aside the point that the ACA did not pass with an overwhelming majority, but by a party-line vote in the Senate and seven votes in the House, and without the support of a single member of the Republican Party, the most astonishing thing about Obama's diatribe was the fundamental misunderstanding of our constitutional tradition it revealed.

Since 1788, in the famous defense of the Constitution set forth by Alexander Hamilton in the Federalist Papers, it has been understood that it is the task of the Supreme Court to rein in majoritarian legislatures when they go beyond what the Constitution permits.

This is not, as Obama implies, judicial activism, or political activity on the part of the justices. This is simply, as Hamilton explained, fidelity to the Constitution itself, fidelity to the highest expression of "We the People of the United States," the body whose representatives ratified that Constitution.

That doctrine of judicial review was most famously expressed by the great Chief Justice John Marshall in Marbury v. Madison (1803), but it had been noted not only by Hamilton, but by many other federal judges in the late 18th century. And over the years, in more than 50 instances, courts have struck down unconstitutional behavior by the federal and state legislatures.

Judicial review is not usurpation -- it is the manner in which the rule of law is preserved in this nation. It is certainly true that sometimes courts, and even the Supreme Court, have erred in their interpretation of the Constitution, and some legislative acts that clearly were permitted by the Constitution have been struck down. But if the ACA's individual mandate is rejected, this will be fully within the legitimate exercise of judicial powers.

Opinion: Supreme Court is playing with fire

This is because, as was made clear in the recent arguments in the court, that mandate, for the very first time in history, is an attempt to compel virtually every adult American to participate in commerce. It is not an attempt to regulate commerce -- which the Constitution permits -- but is, instead, an attempt to create and compel commerce, which the Constitution does not authorize.

The Tenth Amendment to the United States Constitution, a measure regarded as fundamental by those who argued for the passage of the Bill of Rights in 1791, provides that the powers not granted to the federal government are reserved to the states and the people thereof.

As the Supreme Court told us in the Lopez (1995) and Morrison(2000) cases, this means that there must be some limits on the powers of the federal government, and it also means that the basic law-making power, the police power, must reside in the governments closest to the people themselves, the state and local governments.

This is our tradition, and the ACA's individual mandate is a fundamental break with that tradition. If, as it should, the Supreme Court declares the individual mandate unconstitutional, it will be reaffirming our traditions, and not usurping them. The president, a former constitutional law teacher, should be ashamed of himself.


#2 TakeAStepBack

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Posted 04 April 2012 - 02:50 PM


Federal Judge Demands Obama Explain ‘Obamacare’ Statements

In a remarkable, partisan exchange in a Texas courtroom Tuesday, a federal judge demanded that the Obama administration formally explain recent statements by President Obama that some have construed as questioning the authority of courts to review, and potentially strike down, his signature health care law.
Judge Jerry Smith of the 5th Circuit U.S. Court of Appeals, a Reagan appointee, issued the order during oral arguments in a case challenging the Affordable Care Act’s restrictions on physician-owned hospitals.
“I would like to have from you by noon on Thursday… a letter stating what is the position of the Attorney General in the Department of Justice in regard to the recent statements by the President — stating specifically, and in detailed reference to those statements, what the authority is in the federal courts in this regard in terms of judicial review,” Smith told a government lawyer in a recording of the hearing released by the court.
“The letter needs to be at least three pages, single-spaced and it needs to be specific,” he added.
Smith was responding to statements Obama made Monday at a Rose Garden press conference, when he said in response to a question that it would be “an unprecedented and extraordinary step” if the Supreme Court overturned a law that was passed by “a democratically elected Congress.”
“I would 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 — and passed law,” Obama said. “Well, there’s a good example, and I’m pretty confident that this court will recognize that and not take that step.”
Obama’s argument clearly unsettled Smith, who just moments into the presentation by DOJ lawyer Dana Lydia Kaesvang interrupted to voice his displeasure.
“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?” he said.
“Yes, your honor. Of course there would need to be a severability analysis, but yes,” Kaesvang replied, sounding surprised by the random question.
Smith didn’t back down explaining that Obama’s statements had “troubled a number of people who have read it as somehow a challenge to the federal courts or their authority or the concept of judicial review, and that’s not a small matter.” He also referred to the law in question as “Obamacare,” an informal reference that has been politically charged.
Kaersvang again reiterated the administration’s deference to judicial review, but Smith was not satisfied, moving to demand an annotated explanation 48 hours from now.
Neither spokesmen for the White House nor Department of Justice would comment on the matter.
Speaking at an Associated Press luncheon today, Obama appeared to try and clarify his position, arguing that it’s been decades since the Supreme Court struck down a law on an economic issue, such as health care.
“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,” he said, “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.”

Holmes got bitch slapped. I don't know if the court ordered homework assignment holds, but if so, it looks like he's pissing up a rope on this one. But, he kind of has to. This is his only 3 year notable accomplishment and without a strike down, he's going to be swimming up a waterfall this election season. I think it's disgusting he claimed this was a bipartisan passage when only one republican voted in favor of it.

Of course, he is now bringing both sides together, as his budget plan was shot down with zero votes. He is looking more and more like toast everyday. Not that Im in favor of Romney, who seems to have sealed the nominaiton deal after winning the last three primaries, mathematically speaking.

#3 Joker

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Posted 04 April 2012 - 03:08 PM

Yeah that "homework assignment" seems pretty fucked up

Th Daily Show points out the dancing on both sides of this issue as well as the "oh look shiny" aspect of it


#4 TakeAStepBack

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Posted 04 April 2012 - 03:44 PM

Did you read the SC transcripts from the 3 day argument? It seems pretty likely that the SC is going to shoot this down. As they should since the mandate is unconstitutional. Not to mention the ACA puts taxpayers on the hook for around 70 trillion in unfunded liabilities over the next few decades.

#5 Joker

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Posted 04 April 2012 - 03:49 PM

Didn't read the transcripts but saw what Kennedy had to say about it and yeah, it sounds like they're going to do the right thing