As Inigo Montoya might have said: She keeps using that word. I do not think it means what she thinks it means. Karine Jean-Pierre argued yesterday that the Supreme Court violated the Constitution in reversing their own decision in Roe in an attempt to fend off a question about the timing of Joe Biden’s EO on abortion costs. When a reporter wondered aloud why it took Biden three months after the leak of the Dobbs draft and then six weeks after its official publication to issue this EO, Jean-Pierre insisted that Biden’s been all over it since “day one.”
That’s risible enough, but the KJP Con Law Lesson is the real gasser:
White House Press Secretary Karine Jean-Pierre declares that it was "unconstitutional" for the Supreme Court to overturn Roe v. Wade.
— Benny Johnson (@bennyjohnson) August 3, 2022
But look, there has been an urgency from this President from day one when — when the Supreme Court made this extreme decision to take away a constitutional right. It was an unconstitu- — unconstitutional action by them — a right that was around for almost 50 years, a right that women had to make a decision on their bodies and how they want to start their families.
“Day One” would have been May 3. In fact, it might have been December 1, 2021, when the oral arguments at the Supreme Court took place and the direction of the court appeared clearly aimed at Casey if not Roe as well. Biden’s EO is a day late, and in light of the Hyde Amendment, literally every dollar short.
Jean-Pierre attempted a law lesson on Hyde, too:
Q Okay. So let me just clear up — just one final time again. So, on the Medi- — going back of the first question: On the Medicaid — on the proposal to have Medicaid fund travel expenses for women seeking abortion, how would that not violate Hyde if it’s using taxpayer dollars to pay for abortions?
MS. JEAN-PIERRE: This EO does not — will not — will not violate the Hyde Amendment. It is law, and we follow the law here.
It will indeed run afoul of Hyde, which prohibits HHS dollars from funding abortions or benefits tied directly to abortions. This response from Jean-Pierre is wishcasting rather than a serious response. The first time HHS attempts to shift funds for the purposes of Biden’s EO, they will find themselves in court over it. The entire effort will likely get enjoined while the case gets tried and then goes up the appeal chain, right back to the Supreme Court that is now loathe to rely on Chevron in any case, but especially where the budget statute is as explicit as it is in the Hyde Amendment.
That brings us to Jean-Pierre’s absurd “unconstitutional” remark. This sounds like the response of a high-school debater who thinks “unconstitutional” means “anything I don’t like.” No serious thinker, even those who support Roe and Casey, would accuse the court of acting “unconstitutionally” in reversing an earlier decision. In the first place, nothing in the Constitution forbids the Supreme Court from reversing prior decisions. Furthermore, the court has been doing that — sparingly, of course — for almost as long as it’s been around. Stare decisis is a practice, and a good practice, but it’s not a law, let alone a constitutional requirement in Article III.
This accusation is even more absurd when applied to Roe, which famously established a constitutional right based on absolutely no mention of the issue in the Constitution in the first place. If anything, the Roe court acted “unconstitutionally” (and I use that word with heavy irony and grains of salt) by legislating an abortion policy, an act that properly belonged to either Congress or more constitutionally the states. As Justice Samuel Alito wrote in Dobbs, abortion policy isn’t mentioned in the Constitution, so the Ninth and Tenth Amendments apply to that question — and even in the substantive due process sense, the widespread criminal status of abortion prior to Roe argued against that court’s decision.
It’s rather disconcerting to know that someone this inept and unschooled on such a central issue is the White House’s chief spokesperson. Then again, considering who and what the president is, perhaps it’s a perfect fit.