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Wednesday, April 04, 2012

Appeals Court Picks Up Challenge Obama Threw Down

By Susan Duclos

In a blatant attempt to intimidate the Supreme Court before they rule on whether the individual mandate violates the constitution or not, Barack Obama threw down a challenge using inflammatory rhetoric calling the Court a "unelected group" and stating very publicly that if they struck Obamacare down as being unconstitutional it would be an "unprecedented" action.

That argument was easily countered considering that is one of the powers of the Supreme Court and has been done more than once in history.

As Andrew Malcolm over at IBD, states quite eloquently, "Obama's news conference reply seemed stunningly ignorant for a lawyer, someone who's touted his credentials as a constitutional law professor at the University of Chicago. There is nothing "unprecedented" or "extraordinary" about the Supreme Court overturning duly-legislated laws or parts of them. It happens every year, more routinely at lower court levels. Where's he been?"

While Obama, having realized his blunder, attempted to walk back his remarks the following day during a question-and-answer session after a luncheon speech in Washington after a journalist pointed out that courts have, indeed, struck down laws when they proved unconstitutional, Obama then did a complete turnaround by saying "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."

The Supreme Court could not respond to Obama, but an Appeals Court has.

Via CBS News we an Appeals Court is hearing a separate challenge to the health care law and when a lawyer for the Justice Department began arguing before the judges, one of the three Judges asked if the DOJ lawyer agreed that the Court could strike down an unconstitutional law. The lawyer agreed that it could.

Audio from the 5th Circuit hearing, with Judge Smith's order to DOJ, is available here.

In the hearing, Judge Smith says the president's comments suggesting courts lack power to set aside federal laws "have troubled a number of people" and that the suggestion "is not a small matter."

The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss "judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation."

"I would like to have from you by noon on Thursday -- that's about 48 hours from now -- a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president," Smith said. "What is the authority is of the federal courts in this regard in terms of judicial review?"

Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: "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?"

Kaersvang replies yes, and Smith continues: "I'm referring to statements by the president in past few days to the effect, and sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- to what he termed broad consensus in majorities in both houses of Congress."

In asking for the letter, Smith said: "I want to be sure you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases."

Obama is being hammered on his intimidation tactics, using his pulpit to throw down a challenge knowing the Supreme Court cannot respond publicly, but it backfired as even proponents of the Obamacare law are expressing disbelief that he actually said the things he did.

Ruth Marcus over at Washington Post states "To be clear, I believe the individual mandate is both good policy and sound law, well within Congress’ powers under the Commerce Clause", then goes on to address Obama's challenge to the Court.

But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.

I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.

Worse, the president’s critique, and in particular the reference to “unelected” judges, buys into an unfortunate and largely unwarranted conservative critique of judicial power. We want our judges unelected. We want them to have the final constitutional say. The president should be arguing for a second term to prevent the court from tipping in an even more conservative direction, not channeling tired critiques from the right about activist judges legislating from the bench.

Pretty much everyone understands Obama is laying a reelection argument in preparation for a ruling that may strike down the most egregious part of the Obamacare law, the individual mandate, but his original wording came across as being ignorant of the authority of the Supreme Court.

He is doing so at his own peril because as Jennifer Rubin at Washington Post points out "The Supreme Court has generally ranked high among institutions in which Americans have confidence. Moreover, a Gallup poll found last year that Americans think the court is “about right” if not “too liberal.” (“A plurality of Americans, 42%, believe the Supreme Court’s ideology is ‘about right,’ but more believe it is ‘too liberal’ [31%] than ‘too conservative.’[20%] That has been the case in each of the last three years — the first three years of the Obama administration.”)

The Supreme Court doesn't need to respond, the backlash against Obama for his comments not only forced him to attempt to walk back the rhetoric he spewed, but has also shown him to be acting like a child throwing a temper tantrum because someone "might" take his candy away.

[Update] Obama gets law precedent wrong even as he attempts to backtrack.