Wednesday, April 04, 2012


"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."
-President Obama

President Obama was a teacher's assistant in a constitutional law class, and he's made it clear in the past he has problems with the document, calling it "fundamentally flawed." His problem is that it doesn't address "social justice" issues and thought the founding fathers didn't think about blacks when they wrote the thing, despite considering all men to be humans and covered by the document.

Recently, watching his case for upholding the Government Health Insurance Takeover Act fall to pieces as the solicitor defending the bill stammered and staggered through questioning even by friendly justices such as Breyer, the president seems a bit desperate. He attacked the Supreme Court (again) and claimed that a bill passed by such a large popular margin (7 votes in the house is popular?) obviously cannot be unconstitutional.

What's going on? Well, I can see two reasons for this reaction. The first is ego. I remember well in the last weeks of 2009 when President Obama begged congress to pass the bill or he'd look stupid. As with all things for him, it was about President Obama, not America or congress. He's hardly unique in this, I think anyone who aspires to be president has either a huge ego or is insane - or very, very rarely is a humble servant of the people who wants to do his part. But seeing this bill about to be thrown out on transparently unconstitutional grounds, President Obama sees this as a blow to his presidency, and himself personally.

The other reason is that the president honestly and really cannot conceive that this bill could be unconstitutional because as I wrote about a few days ago, the left doesn't see the constitution the way the founding fathers did and - if polling is accurate - most of America does.
They think the US Constitution allows the federal government to do anything except what it specifically prohibits. In other words, there are no restrictions on the federal government except where the constitution specifically says "you cannot do this." That's why the left loves the 1st amendment and seems able only to cite it and the 14th amendments, because they specifically prohibit certain actions.
He thinks its obvious this is constitutional and so only hateful right wing extremism could explain throwing the bill out, radical activism from the bench.

As others have pointed out, the president's implication that it would only be judicial activism to throw out this bill and that it is unprecedented are hilariously without the slightest shred of merit. The president himself went on TV the next day and tried to backpedal, but in the process ended up looking even more ignorant:
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.
The problem is that Lochner was a state law, not federal and hence had nothing to do with the US congress or the interstate commerce act. And, as James Taranto writes at the Wall Street Journal Corner, there was a case later than Lochner vs New York; A.L.A. Schechter Poultry Corp. v. U.S. (1935). And that one actually was the Supreme Court shutting down an unconstitutional law from congress regarding the commerce clause.

In that case, the FDR era congress was ramming through one radical socialist plan after another and while the courts didn't manage to block it all (sadly), they did shut down a few of these extreme left ideas. And it wasn't unprecedented. What is unprecedented is for a president to not just comment on but attack the Supreme Court while they are deciding a case, especially following up on a previous assault on the court during his state of the union speech.

Judges are of no small opinion of themselves and their position, and one apparently decided the president had gone too far. Judge Jerry Smith (a Reagan appointee) ordered (requested, but it means the same thing in a court session) the Obama Justice Department attorney in a case to return with a 3 page single-spaced essay "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."

In essence, this judge spanked not just this attorney but the Obama administration and President Obama himself for his statements and pattern of scorn toward judges who rule in ways he doesn't care for. There is some division of opinion on how this looks to the world but I think it hurts President Obama far more than it does this judge.

Now, this is a petty abuse of the judge's powers, and the attorney seemed not a little bit flustered but if you keep attacking and abusing courts and judges, you have to expect the judges to be less than amused and will face consequences. And it probably wouldn't hurt the justice department to bone up on its constitutional law a little.

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