First Obama tries to intimate the Supreme Court, getting it totally wrong and causing a backlash that forces him to backtrack fast. An appeals court demands a DOJ lawyer clarify the administrations position on the whether the Courts have the power to declare a law unconstitutional.Then it is duly noted that in his attempt to mitigate the damage his gaffe produced, Obama still got the law and precedent wrong.
Original comments: Obama- "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 would like to remind conservative commentators that for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law."
Obama's attempt to backtrack a day later: "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."
Wall Street Journal addresses the example Obama used when he cited Lochner:
But in citing Lochner, the president showed himself to be in over his head.
The full name of the case, Lochner v. New York, should be a sufficient tip-off. 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 legal doctrine at issue, "substantive due process," refers to the meaning of "life, liberty and property" under the Due Process Clause.)
Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law--contrary to the president's claim--and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.
Ooooops?
It get's worse. Despite Obama's claim that an "economic issue" which he sees as a "commerce law" has not been "overturned at least since Lochner, he gets it wrong again, since John Hinderaker over at Power Line provides a multitude of examples which shows Obama's statement to be either an outright lie or that he simply didn't bother to read up enough to learn about the cases and previous rulings he claimed there were none of.
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.
Oops again?
Obama the "legal scholar" might want to take a refresher course on his legal precedents, laws and rulings, before he opens his mouth about it again.
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