We are living in the midst of an interbranch constitutional clash, and frankly, I am getting more and more concerned.
I guess it all begins on January 20, 2008, when the Chief flubs Obama’s oath. Not an auspicious start.
At the 2010 State of the Union, President Obama lashed out at the Supreme Court for it’s Citizens United v. FEC decision.
Justice Alito infamously shook his head, and mouthed “Not True.”
I’ll skip over all the challenges in the lower courts for now.
The arguments at the Supreme Court had severely political overtones–many of Justice Scalia’s questions about Broccoli, not reading the bill because it is too long, and what Congress would do if the mandate was severed–seemed more at place in a political debate than in the Supreme Court.
Then President Obama–the former senior lecturer in constitutional law–had to step in it, and comment that it would be unprecedented for unelected judges to overturn an act of congress with popular support (ACA barely passed over huge political opposition, 219-212 in the house).
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.
Unprecedented! Take a shot! Really, that title works better and better for my planned book about ACA.
Senate Majority Leader McConnell accused Obama of attempting to “intimidate” the court and said the remarks demonstrate “a fundamental lack of respect for our system of checks and balances.”
“Only someone who would browbeat the Court during the State of the Union, and whose administration stifled speech during the health care debate, would try to intimidate the Court while it’s deliberating one of the most consequential cases of our time,” McConnell said in a written statement. “This president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”
After some blow-back, the President clarified his comments:
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.
And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.
Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has. As a consequence, we’re not spending a whole bunch of time planning for contingencies.
Then Judge Jerry Smith upped the ante, and ordered the Department of Justice to certify in a letter to the court that it supports the power of judicial review. A juvenile move.
Then the Attorney General said he will respond to Judge Smith (I wonder if he will personally sign the letter):
This brawl is on.
I am getting really antsy about this case. Everyone–Congress, the President, and the Courts are playing with fire. And I have little faith that any of them know what they’re doing.