By the time Barack Obama made his pre-emptive attack on the Supreme Court as they consider the ObamaCare lawsuit, I was already on my way out the door to my vacation — but that doesn’t mean that it doesn’t deserve an addition to the OOTD canon. For today’s entry, we’ll just let two media fact-checking organizations take the unusual step of scolding the President for blowing a Con Law issue that would get a first-year law student a dime from John Houseman and an early exit to the service or food industries.
Just to refresh everyone’s memory, this is what Con Law lecturer Barack Obama told the nation about judicial review:
“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.”
Politifact found Obama’s contention that the Supreme Court overturning the law would be “unprecedented” and Obama’s idea of “a strong majority” both rather extraordinary. That is, if by “extraordinary” you mean utterly false and indefensible:
There’s simply no support for the assertion that the law was passed by a “strong majority.” It was passed along party lines in a sharply partisan climate, and the 60 votes in the Senate were the minimum needed to keep Republicans from bottling it up in a filibuster.
But the “unprecedented” idea is more nuanced. It’s without question that the Supreme Court overturning a law passed by Congress — by any margin — is a common and routine occurrence, and by no means without precedent. Volokh gave us a close analogy with the case of Boerne vs. Flores, a religious freedom law that glided through Congress but was held unconstitutional by a majority of the court, including two of its liberal justices.
However, Obama’s elaboration a day later at least gives us more to think about. He argued that invalidation of the health care law would represent a court action unseen since the Great Depression on an issue that affects every American. Ornstein echoed that interpretation, saying that a ruling by the court which overturns a major social policy and challenges prior court rulings would be unprecedented.
But we’re taking Obama literally, and that historical perspective was not reflected in his original statement, which is what we’re ruling on. He simply said the law passed with a strong majority and overturning it would be unprecedented. Wrong and wrong. We rate the statement False.
And for that matter, Glenn Kessler at the Washington Post had the same two objections, giving Obama two Pinocchios for his argument:
First of all, the president has a rather distorted view of what constitutes a “strong majority” if he thinks the Affordable Care Act vote makes the cut. Not only was the victory achieved by a margin of just a few votes in the House, but the supporters were from only one political party—his own.
Second, Obama’s remarks implied that the Supreme Court would be acting in extreme fashion by overturning the health-care law. That isn’t necessarily true. Some would say that invalidating an economic regulation isn’t extraordinary at all.
In fact, the president delivered a sort of factual history lesson on Constitutional law, which he then used as the basis for his argument about judicial overreach. When all was said and done, he had suggested twice that the justices are in danger of becoming the next despicable group of activist judges — like the so-called Lochner court.
On balance, the president earns two Pinocchios—which means creating “a false, misleading impression by playing with words and using legalistic language that means little to ordinary people”—for his comments about the pending Supreme Court decision.
Both are rather scalding takedowns for a supposed expert on Constitutional law, but it’s really even more basic than either states. Obama argued against the entire idea of judicial review in his original statement, expressing the idea of any Supreme Court determination of unconstitutionality about a law passed by Congress would by definition be extreme. He later tried walking it back, but only after getting roundly criticized — by, among others, the president of the American Bar Association, albeit after the fact (via Instapundit):
President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.”
We’re gratified that the president recast his remarks Tuesday. He clarified appropriately that “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.”
Federal judges are, by design, not elected officials. Article II of our Constitution reserves for the president the authority to appoint Supreme Court justices and all other officers of the United States with the advice and consent of the Senate. In fact, President Obama himself has offered more than 123 nominations for Article III judgeships, including two lifetime appointments to our nation’s highest court.
The legitimacy of judicial review was settled more than 200 years ago in the landmark case Marbury v. Madison, which established such review as a key safeguard of the separation of powers doctrine. The Framers of our Constitution clearly understood that an independent judiciary is critical to the maintenance of our democracy and freedom.
It is incumbent on all of our elected officials—including those aspiring to hold office—to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.
Finally, our great friend Michael Ramirez came up with the perfect editorial cartoon for Investors Business Daily:
Click on the link to see the last note on the left chalkboard. If Obama is so unhappy with unelected officials with no accountability to voters making life and death decisions, then why did he propose the Independent Payment Advisory Board as part of ObamaCare?
Got an Obamateurism of the Day? If you see a foul-up by Barack Obama, e-mail it to me at [email protected] with the quote and the link to the Obamateurism. I’ll post the best Obamateurisms on a daily basis, depending on how many I receive. Include a link to your blog, and I’ll give some link love as well. And unlike Slate, I promise to end the feature when Barack Obama leaves office.
Illustrations by Chris Muir of Day by Day. Be sure to read the adventures of Sam, Zed, Damon, and Jan every day!