Krauthammer on POTUS v. SCOTUS

As always, an interesting read from Charles Krauthammer. Read the original here.

Obama v. SCOTUS

The Washington Post
By Charles Krauthammer

Published: April 5

“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.”

— Barack Obama, on the constitutional challenge to his health-care law, April 2

“Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.

In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.

With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.

Obamacare passed the Congress without a single vote from the opposition party — in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.

The president’s preemptive attack on the court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.

Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the commerce clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What, then, is the limiting principle?

Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.

Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, Congress is omnipotent, authorized by the commerce clause to regulate “every human activity from cradle to grave.”

Q.E.D.

Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lock-step support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.

As was Rep. Phil Hare (D-Ill.). As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by the more constitutionally attuned owner of an East Moline pizza shop.

letters@charleskrauthammer.com

Washington Times has a theory on why POTUS is attacking the Court

Not a bad theory. Read the original here.

CURL: Divide and conquer: Obama knows exactly what he’s saying
By Joseph Curl
The Washington Times
Wednesday, April 4, 2012

ANALYSIS/OPINION:

Now, everybody just hold on a minute: Rein it on in, people.

Of course President Obama knows that the Supreme Court’s chief function is to decide, disinterestedly, whether a law adheres to the U.S. Constitution. He was, after all, a constitutional law professor at the University of Chicago and is — to hear the liberal intelligentsia tell it — the smartest man since Albert Einstein.

And of course Mr. Obama knows full well that the high court has done just that since Marbury v. Madison in 1803, when the court asserted its authority of judicial review spelled out by the Founding Fathers under Article III of the Constitution.

So everyone needs to take pause when The One says something like he did this week about his precious health care mandate: “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’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.”

Now, Mr. Obama certainly knows that the words that flowed from his rhetorical lips were completely false. Striking a law of Congress is not unprecedented, and not even particularly extraordinary: The court’s struck down more than 150 federal laws since its inception, not to mention overturning hundreds of state and local laws.

So why on Earth would he say it? Why would he lecture the top jurists in the land — unelected, as they are, and appointed for life to remove them from petty politics — that the law has a “human element” that he hopes is “not forgotten in this political debate”? Why, for Heaven’s sake, would he declare that “the justices should understand” his health-care law doesn’t work unless every American is forced to buy coverage, whether it’s constitutional or not?

Simple. His provably false remarks weren’t aimed at Supreme Court justices, but rather at uninformed Americans, especially liberals (is there any other kind?). The most divisive president in history is setting up yet another straw man for his re-election campaign, one that fits directly into his strategy to divide and conquer.

The campaign geniuses, the same ones who came up with the idea to run against the much-despised Congress (even though Democrats control the Senate), have decided that deriding the Supreme Court as an arm of the Republican Party is a winning plan, one that will resonate across the country come November.

But here, the big brains are horribly mistaken: Mr. Obama maligns the high court at his peril. Americans, especially those in what dual-coast lefties derisively dub “flyover country,” like their Supreme Court. They aren’t about to let a president — any president — bully what many see as the cornerstone of the checks-and-balances system set up by the Founders.

In fact, Americans believe in the court’s power as final arbiter even if they disagree with a ruling. While there was much hand-wringing among the elite left when the court ruled in favor of George W. Bush after the 2000 election, Americans simply went, “Well, there you have it, matter concluded, on we go.”

This time is different, though, as Mr. Obama, who rode to Washington on promises to be America’s first “post-partisan” president, appears increasingly desperate to cling to power and seek advantage any way he can. Make no mistake, the high court striking down Mr. Obama’s health care mandate, his singular achievement since taking office, will shock Americans.

“Hey, honey, it turns out that whole thing was illegal,” they’ll say out there in flyover country as they mull whether to support a president who so blatantly ignores the Constitution in his quest to expand the federal government into every corner.

And Mr. Obama no doubt already knows that’s just what the court will do when it rules in June. The justices fiercely questioned the president lawyer over three days, mocking his often indefensible arguments for why the government can force Americans to buy health insurance, and then took a preliminary vote last Friday. Clearly, a justice sympathetic to the president passed along the outcome — and Mr. Obama’s comments this week certainly appear to show the court is planning to rule against the trillion-dollar mandate.

Still, the president’s strategy is already working, at least at the New York Times. Right on cue, columnist Maureen Dowd savaged the court: “This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”

“Impeach the Supreme Court Justices If They Overturn Health-Care Law,” wrote David Dow, a columnist for the Daily Beast. “It is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.”

And there, in a nutshell, is Mr. Obama’s plan to divide and conquer. Rise up, America, against your nation’s Congress, your nation’s highest court — and even America’s Constitution.

His desperation is now palpable, and it’s only April. This is going to get ugly, people.

• Joseph Curl covered the White House and politics for a decade for The Washington Times. He can be reached at jcurl@washingtontimes.com.

POTUS points out that Supreme Court is unelected...

...and he should know since he appointed one of them. This is just tacky politicking to me. But maybe I'm just being bitter. Read the original here.

Combative Obama warns Supreme Court on health law
by Stephen Collinson | AFP – 13 hours ago

US President Barack Obama on Monday challenged the "unelected" Supreme Court not to take the "extraordinary" and "unprecedented" step of overturning his landmark health reform law.

Though Obama said he was confident the court would uphold the law, the centerpiece of his political legacy, he appeared to be previewing campaign trail arguments should the nine justices strike the legislation down.

In a highly combative salvo, Obama also staunchly defended the anchor of the law -- a requirement that all Americans buy health insurance -- as key to giving millions of people access to treatment for the first time.

"Ultimately, I am 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," Obama said.

Pointed comments from Supreme Court justices last week during three days of compelling hearings have convinced many commentators that the court, expected to rule in June, will declare the law, dubbed ObamaCare, unconstitutional.

Such a move would electrify the White House race, puncture Obama's claims to be a reformer in the grand political tradition, and throw the US health care industry into chaos.

Obama noted that for years, conservatives had been arguing that the "unelected" Supreme Court should not adopt an activist approach by making rather than interpreting law, and held up the health legislation as an example.

"I am pretty confident that this court will recognize that and not take that step," Obama said during a press conference in the White House Rose Garden with the leaders of Canada and Mexico in his first comments on last week's hearings.

Obama's comments will be seen as a warning shot to the court, one of the three branches of the US government, and could draw complaints from critics that he is trying to influence the deliberations.

The health care case is the most closely watched Supreme Court deliberation since a divided bench handed the 2000 presidential election to George W. Bush over Al Gore, and could have far reaching political implications.

Obama also argued there was a "human element" to the health care battle, as well as legal and political dimensions.

He said that without the law, passed after a fierce battle with Republicans in 2010, several million children would not have health care, and millions more adults with pre-existing conditions would also be deprived of treatment.

Opponents of the health care law argue that the government has overreached its powers by requiring all Americans to purchase health insurance.

But supporters say that the government is within its rights to regulate the health industry as it has the power to oversee commerce across state borders.

Without the mandate, they say, the costs of insuring an extra 32 million Americans would be prohibitive to the private health insurance industry.

The Affordable Care Act is highly polarizing in US politics as the election approaches and Obama is yet to get a political dividend for the huge expenditure of political capital required to pass the legislation.

If the court upholds the law, and he wins reelection in November, the legislation will likely stand for years, as it will be fully implemented by 2014, two years before his second term draws to a close.

But Republicans running to replace him in the November 6 election have all vowed to repeal ObamaCare.

"I think it's important... to remind people that this is not an abstract argument," Obama said.

"The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it.

"There are tens of thousands of adults with preexisting conditions who have health care right now because of this law."

What are the qualifications of a Constitutional Law professor?

Because I'm seriously wondering what President Obama's understanding of constitutional law is. And, also, what the definition of judicial activism is. And what the jurisdiction of the US Supreme Court is. And what the 'stare decisis' is. I think he's doing it wrong... I'm also uncomfortable with his political pot shots against the Court itself. It seems...rude.  Read the original here.

Obama takes a shot at Supreme Court over healthcare
By Jeff Mason
WASHINGTON | Mon Apr 2, 2012 6:45pm EDT

WASHINGTON (Reuters) - President Barack Obama took an opening shot at conservative justices on the Supreme Court on Monday, warning that a rejection of his sweeping healthcare law would be an act of "judicial activism" that Republicans say they abhor.

Obama, a Democrat, had not commented publicly on the Supreme Court's deliberations since it heard arguments for and against the healthcare law last week.

Known as the "Affordable Care Act" or "Obamacare," the measure to expand health insurance for millions of Americans is considered Obama's signature domestic policy achievement.

A rejection by the court would be a big blow to Obama going into the November 6 presidential election.

Republican presidential candidates, who are vying to take on Obama in November elections, have promised to repeal the law if one of them wins the White House.

Obama's advisers say they have not prepared contingency plans if the measure fails. But the president -- who expressed confidence that the court would uphold the law -- made clear how he would address it on the campaign trail if the court strikes it down.

"Ultimately, I am 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," Obama said at a news conference with the leaders of Canada and Mexico.

Conservative leaders say the law, which once fully implemented will require Americans to have health insurance or pay a penalty, was an overreach by Obama and the Congress that passed it.

The president sought to turn that argument around, calling a potential rejection by the court an overreach of its own.

"And I'd just remind conservative commentators that, for years, what we have 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," Obama said.

"Well, this is a good example, and I'm pretty confident that this court will recognize that and not take that step," he said.

POLITICAL DEBATE

The Supreme Court justices are expected to issue decisions in the dispute by late June, a time when the presidential campaign season is likely to be in full swing.

"It's not that common for presidents to get into direct verbal confrontations with the Supreme Court," said Georgetown University law professor Louis Michael Seidman. "But it's also not that common for the Supreme Court to threaten to override one of the president's central legislative accomplishments."

A spokeswoman for the court declined to comment on Obama's remarks.

A spokeswoman for Mitt Romney, the front-runner for the Republican presidential nomination, took issue with Obama's preemptive strike and his use of the word "unprecedented."

"What was ‘unprecedented' was the partisan process President Obama used to shove this unconstitutional bill through despite the overwhelming objections from Americans across the country," said Romney spokeswoman Andrea Saul.

"Even if the law is upheld, Governor Romney will begin the process of repealing it on Day One in office."

Romney shepherded healthcare reform through the state of Massachusetts when he was governor there. Democrats note that Romney's law was an inspiration for Obama's.

The president, who once taught constitutional law at the University of Chicago, said the "individual mandate" that requires most people to buy insurance was critical to the success of the healthcare overhaul.

The Supreme Court is looking at whether Congress exceeded its power to regulate commerce in U.S. states with that mandate.

"I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care," Obama said.

"So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate."

(Additional reporting by Joan Biskupic, Tabassum Zakaria, Samson Reiny, and Steve Holland. Editing by Christopher Wilson)