On Monday President Obama made news when he made the bizarre proclamation that the concept of judicial review, established over 200 years ago in Marbury vs. Madison, somehow didn’t (or shouldn’t) apply to ObamaCare and a that reversal would be an “unprecedented” exercise of judicial activism:
President Obama preemptively slammed the Supreme Court as a bunch of “unelected group of people” who will have turned to “judicial activism or a lack of judicial restraint” if they decide to strike down his signature legislative achievement, the healthcare reform act.
Obama was speaking at a trilateral event with the Prime Minister of Canada and President of Mexico.
Obama touted the Affordable Care Act, or Obamacare, as “a law that was passed by a strong majority of a democratically-elected Congress.”
“I am confident 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,” President Obama said at a White House event in the Rose Garden today.
“I just remind conservative commentators that for years we have heard 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 passed law.
Huh? Since when did Obama have any reservations about unelected people making decisions? Where was Obama when Kathleen Sebelius unilaterally revoked the 1st Amendment? Where has he been while the EPA has systematically endeavored to bankrupt the coal industry? And what about his several dozen “Czars”? Who elected them? I digress.
Obama purports to be a former constitutional law
professor lecturer. How could he have been unaware of the Court’s constitutional role? At least one of Obama’s former students, Thom Lambert, is asking the same question:
Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun. Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise. Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5. You’d be a little embarrassed, right? You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.
Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.” Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas. Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”
I actually know the answer to that question. It’s no (well, technically yes…he didn’t). President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.
Hmmm. It sounds to me like at least one of Obama’s students isn’t particularly impressed with Obama’s understanding and knowledge of the constitution. But then Obama’s ignorance of, if not antipathy toward, the constitution is not exactly a news bulletin for anyone who’s paid any attention to Obama’s modus operandi. As Lambert goes on to note, another of his former mentors (who possesses a much better grasp of con law), wasn’t amused by Obama’s apparent obtuseness:
Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments. This morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff.
Lambert’s referring to Tuesday’s order by Judge Smith that Obama’s Attorney General explain the Administration’s position on judicial review. Smith’s order more closely resembled a nun scolding an errant fourth grader than a judge questioning a supposed legal scholar, as Gateway Pundit Notes:
I will not throw spitballs at the Supreme Court… I will not throw spitballs at the Supreme Court… I will not throw spitballs at the Supreme Court… Repeat this statement fifty more times, President Obama, single-spaced, on three pages, by Thursday.
This is what happens when our Constitutional lecturer president stands on the White House lawn and astoundingly challenges the authority and credibility of the Supreme Court; he gets issued a homework assignment on the fundamentals of our Constitution.
Obama’s radical statements yesterday were so inconceivably stupid and dangerous he managed to completely offend and alarm the entire U.S. 5th Circuit Court of Appeals Panel. So, today, during a hearing over a separate ObamaCare lawsuit, Appellate Judge Jerry Smith issued an Order for Obama’s Department of Justice to explain by Thursday whether the administration ”recognizes that federal courts have the authority to strike federal statutes” that are unconstitutional… single-spaced and on no fewer than three pages.
Hilarious. Three, single-spaced, pages. Had I been Judge Smith, I would have also specified font size and that the brief be typed. With Obama, as with a fourth grader, these kinds of specifics are, sadly, often neccessary. In any event, Obama’s exalted AG, Eric Holder, with tail tucked firmly between his legs, complied with Judge Smith’s order today and was forced to admit that, yes, the Supreme Court does indeed have the authority to review ObamaCare (and any other law) for constitutionality:
Attorney General Eric Holder assured a federal appeals court Thursday that the Obama administration believes judges have the authority to overturn federal laws, after President Obama’s comments earlier this week raised concerns from the bench about his view of judicial power.
Holder, in a three-page letter to the 5th Circuit Court of Appeals, said “the power of the courts to review the constitutionality of legislation is beyond dispute,” though it should only be exercised in “appropriate cases.” He also claimed laws passed by Congress are “presumptively constitutional.”
The response capped an unusual dispute between the co-equal branches of government, one which has since reverberated on the campaign trail and beyond.
Obama originally said Monday it would be “unprecedented” for the Supreme Court to overturn the federal health care overhaul, following its three-day review of the law last week. Administration officials later insisted that the president was not making a broad statement – and was rather referring only to cases pertaining to the Commerce Clause and dealing with matters of the national economy.
The comments, though, caught the attention of a three-judge panel on the 5th Circuit, as Judge Jerry Smith paused during a hearing Tuesday to chide the administration for what he said was being perceived as a “challenge” to judicial authority.
“That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority,” Smith said. “And that’s not a small matter.”
No, it’s most certainly not. This is not a monarchy and Obama is not a king or, for that matter, a God. He’s just the head of one of the three branches of government. It’s comforting to see that the nation’s top law enforcement officer, however grudgingly, has acknowledged the obvious. It’s impossible to know how the Supreme Court will react to Obama’s Chicago-style position that his priorities aren’t subject to review, but here’s hoping they’re disposition is similar to Judge Smith’s.
For those who may have missed it, here’s the President lecturing the Supreme Court on their proper role in the Age of Obama:
Update: This is classic:
White House press secretary Jay Carney tells the press corps that President Obama’s attack on the Supreme Court was misunderstood because he was speaking in “shorthand” since he is a former professor of law.
Henry: The president is a former constitutional law professor. One of his professors is Laurence Tribe. He now says, in his words, the president “obviously misspoke earlier this week”, quote “he didn’t say what he meant and having said that in order to avoid misleading anyone, he had to clarify it.” I thought yesterday you were saying repeatedly that he did not misspeak. What do you make of the president’s former law professor saying he did?
Carney: The premise of your question suggests that the president of the United States in the comments he made Monday, did not believe in the constitutionality of legislation, which is a preposterous premise and I know you don’t believe that.
Henry: Except this is from Laurence Tribe, who knows a lot more than you and I about constitutional law.
Carney: What I acknowledged yesterday is that speaking on Monday the president was not clearly understood by some people because he is a law professor, he spoke in shorthand.
So, to clarify Carney’s remarks, the President wasn’t scolding the Court, we’re just too stupid to understand what brilliant “Law Professor” Obama was actually saying. Laurence Tribe and the 5th Circuit Court of Appeals are apparently among those unable to comprehend Obama’s ingenious ”shorthand”. Thanks for clearing that up, Jay.
Click image below to watch: