On my way home from work tonight I heard the following exchange between Hannity and Ann Coulter, with Ms. Coulter arguing in part what I state below: judicial activism is not a court finding a law unconstitutional, but finding new rights or failing to enforce existing constitutional rights. Often she’s a bit extreme to be taken completely at face value, but I think she’s right to point out the judicial activism that concerns the right is not what apparently concerns the left:
If you thought the open mic comment to new Russian President Medvedev was pretty bad, President Obama has created some competition for himself in the gaffe department. Or was it another window to his soul?
You may have heard that Monday President Obama appeared to warn the Supreme Court regarding its pending decision on Obamacare. His comments were as follows:
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.
Yahoo called the remark a “challenge” to the Court. Others weren’t so kind. Among other problems with the President’s statement, you may recall that whether Obamacare was passed by a “strong majority” can be called into question. It was a purely party-line vote. But I digress.
I’m willing to assume President Obama, as a constitutional scholar, understands the concept of judicial review, and that courts overturning unconstitutional laws is not “unprecedented.” As a liberal, he may even be among the first to re-affirm that Marbury v. Madison is still good law. But the tone and chosen wording of the President’s comments caused the White House to have to defend itself from some of those “unkind” remarks yesterday. White House Press Secretary Jay Carney (the guy distributing the Obama Kool-Aid) tried to make the case the President was “clearly” referring only to commerce clause cases, and with respect to those only those of the past 80 years. Neither qualification, of course, was actually included in the President’s initial comments. When pushed as to whether the president was clarifying his remarks, Carney said “Only because a handful of people didn’t understand what he was referring to.”
Here’s a link to the video should you care to watch. Today he added that the President had been speaking in “short-hand.” I hope that flexibility is accorded both sides in campaign season. We’ll see.
The president’s statement caused Ruth Marcus of the Washington Post to write:
Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”
And she makes clear she’s on his side otherwise.
Others were much more critical. I won’t bore you with a long list of citations and links to that effect. Perhaps just this one from Senate Minority Leader Mitch McConnell, as reported on CNN, telling the President to “back off.” But with widespread “misunderstanding” of what Mr. Carney calls an “unremarkable” comment, perhaps it was the words chosen, not the audience, that caused the problem.
At least one other relatively intelligent person (assuming I, too, qualify) seemed to misunderstand the President’s intent. Forbes reported that a Fifth Circuit Court of Appeals judge gave the administration an assignment yesterday in a move that was the equivalent of making the President write lines on the blackboard. In an Obamacare case unrelated to the one in front of the Supreme Court, the judge asked if the administration recognized the Federal Courts’ power to strike down laws the court views as unconstitutional. The lawyer responded “yes,” to which the judge responded:
I would like to have from you by noon on Thursday…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, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
Ouch. School got out at 3 yesterday, but the DOJ had to stay late to finish its homework.
Why is any of this relevant? The question is why would the President of the United States say what he did. The reason could be as innocuous as a desire to express confidence the Supreme Court would arrive at what he thinks is the correct decision. Okay, that’s possible. But another possibility is obvious: he could have been warning the Supreme Court, inappropriately attempting to influence their yet-to-be-made decision. Or he could be preparing to politicize the decision in the event it goes against his crowning achievement, previewing his argument that the court is acting politically rather than impartially. I find either choice troubling, coming from the President of the United States. One rumor mill suggests the President may have been given a preview of the Supreme Court’s preliminary vote, and wanted to telegraph that it needed to change. I find that hard to believe, but stranger things have happened.
Like President Obama’s statement that he’ll have more flexibility to do what John Q. Public doesn’t like after the election, I see a real problem with the President’s apparent anti-democratic desire to twist the arm of an equal branch of our constitutionally-based government. In my view, if the court finds Obamacare unconstitutional, it’s illegal and in violation of the social contract with the governed, regardless of what benefits its sponsors intended. To re-employ a thought he has expressed before, no, this is not a dictatorship. The President, conservative or liberal, does not get to decide the law without the participation of Congress and the approval of the courts. And to be clear, the judicial activism the President says conservatives dislike is quite a bit different from the sort he complains about: conservatives tend to decry finding rights in the constitution that aren’t there, while he calls it activism should the court say the government does NOT have a power he would like it to. Conservatives maintain the constitution is intended to limit the government’s rights; he is complaining the government’s rights haven’t been expanded enough.
To be fair, the President heard the reaction and tailored his prior statements. Here’s a link to that video.
By way of preview, it doesn’t sound like much of a walk-back. It kind of sounds like when I apologized to my sister when I was little–lots of words, not much substance.
Is all forgotten? I’m not so sure. I’m starting to see a pattern here.