Wednesday, April 11, 2012
The law professor and his difficulties with the legal system
President Obama’s comments last Monday about the Supreme Court has fired up a storm of criticism that won’t go away.
"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," he said. "And I'd 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 passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."
It is a real challenge to get so much wrong in less than a hundred words.
As every middle school student ought to know, the Judicial Branch, of which the U.S. Supreme Court is the top level, is a co-equal branch of government with the Executive and Legislative Branches; it is certainly not unprecedented for the Supreme Court to overturn an unconstitutional law, and in fact, one of its primary duties is to protect the nation from unconstitutional behavior by the Legislative and Executive branches.
Second, while the 2,700 page health care reform bill was indeed passed by a democratically elected Congress, it was not passed by a “strong majority.” The bill that was created without Republican input was passed without Republican support in either house. On the final vote it passed in the House by a thin 220-207 margin, and by 56-43 margin in the Senate, a combined margin of just 5 percent. That’s less than the modest margin Barack Obama won the presidency by, and is certainly not a mandate by any objective measure. Furthermore, it should be noted that every unconstitutional law struck down by the Supreme Court also was passed by a majority of the Congress.
Next, he slighted the Supreme Court, calling it an “unelected group of people.” That’s a pretty wild statement for someone who may or may not have been a constitutional law professor at a major American university. At the University of Chicago Law School Mr. Obama’s title was not “Professor,” but “Senior Lecturer,” though the difference could be a matter of semantics.
And then he turned the term “judicial activism” on its head, asserting that by adhering to the Constitution and overturning Obamacare, the Court’s ruling would be “activist.”
Professor/Lecturer Obama is confused about “judicial activism,” which is making law from the bench, and that involves ignoring the intent of the Constitution that the Founders took such pains to express, and instead yielding to political influences and personal preferences. Essentially, the Court either supports the tenets and concepts contained in the Constitution, or it doesn’t. The former position is judicial conservatism; the latter is judicial activism, or judicial liberalism.
In response to the firestorm that ensued, Mr. Obama clarified what he really meant the next day, which was that the Supreme Court hadn’t overturned a law involving the Commerce Clause, which Obamacare stretches to its breaking point, in the last 80 years, not that only by being an “activist” court could it overturn a law passed by Congress.
That wasn’t good enough for the president’s critics, some of whom read the comments as an attempt to intimidate the Court. Nor was it good enough for the 5th Circuit Court of Appeals, which was interested enough in the comment to issue an order giving the Justice Department just two days to state whether the administration truly believes courts lack the authority to strike down mandates that are unconstitutional.
Attorney General Eric Holder sent the judges what has been described as “a law student-level brief on the propriety of judicial review,” that intentionally ignored the main question. Instead, Mr. Holder instructed the 5th Circuit panel on the deference courts must pay to acts of Congress.
Trying desperately to make lemonade from the lemon the president gave to him, White House spokesman Jay Carney explained that as someone who used to be a law professor, Mr. Obama was talking in “shorthand.” Which apparently means that Obama can say something opposite to what he actually meant, and he understands what he meant, but the rest of us who weren’t/aren’t law professors unfortunately listen to him and think he meant what he said instead of what he now says he actually meant. Everybody following that?
And isn’t it fair for people to expect a constitutional law professor to understand that the purpose of the Constitution is to relieve the mere mortals who hold elective office of the temptation to substitute political motives for Constitutional protections of our unalienable rights.
And White House press secretary Carney further clarified that comment by saying, “He did not suggest, did not mean and did not suggest that it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do. But it has under the Commerce Clause deferred to Congress’s authority on matters of national economic importance.”
Well, maybe so, or maybe not, and maybe that was appropriate, or maybe it wasn’t. However, one might reasonably expect the President of the United States, who is a lawyer and also a former constitutional law professor/lecturer, speaking on a legal matter to more unambiguously state his case.
There may be some political advantage hidden deep in this colossal screw-up, but it plainly did the president a good bit of harm, initially, helping to cement the idea that many hold of Barack Obama as a lightweight who is completely in over his head.