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Tuesday, April 3, 2012

Obama Stumbles Badly on Judicial Review (Update: Audio Link Added) (Update: Instalink!)

Update (IV): Instalink!  Sweet!  (And thanks.)

Update (III): The Fifth Circuit has revised its request and it has already been completed by the esteemed Bartholomew Simpson, Esq.:

Bart Simpsons Chalkboard

I mean that is what it is like, right?  (Created using this site.)

Update (II): Scroll down for my analysis of the audio from the Fifth Circuit essentially spanking the U.S. counsel, for what the President said.  I am leaving her name out of this to reduce the level of embarrassment because none of this is her fault.

So yesterday the President made some stunningly stupid comments on the challenge to Obamacare:

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.

I would be hardly the first commentator who pointed out that it is far from unprecedented for the Supreme Court to strike down Congressional laws as conflicting with the Constitution.  Now truthfully, they far more often strike down state laws, than Federal laws, but they do indeed get struck down all the time.

And I am not the first to point out that this claim is dishonest in another way, namely by claiming that a strong majority passed this law.  In barely squeaked by and indeed in Massachusetts, Scott Brown was elected precisely to stop this legislation, and the Democrats resorted to shenanigans to get it passed without his input.

Fewer people notice how dishonest the lines just after it are:

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.

First off the average conservative commentator thinks that this law is unconstitutional.  So if anything counts as activism in their minds, it would be upholding this law, mandate and all.

Second, it’s interesting that he frames this merely as a conservative concern.  That is because he has no cause to complain about activism.  As I wrote in my Patterico days:

And notice that term “activism.”  The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals.  They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air.  Let’s suppose for the sake of argument that the judge’s opinion is not supported by the [C]onstitution or precedent—they have no principled objection to that.  So their objection is merely to losing.

You might also enjoy the “augmented” version of the quote by Dana Pico at Common Sense Political Thought (I always appreciated the kind words written there, too).

The point is that it is fundamentally dishonest for a liberal to complain about judicial activism.  That’s not to say that true judicial activism isn't a problem.  After all, suppose that secretly behind closed doors the outcome of Bush v. Gore was really about which candidate they preferred?  Then that is a problem, isn’t it?  I mean every justice, as an American citizen, has a right to vote for President, but this would give their vote infinitely more power than any ordinary citizen, if they choose election law cases based on who they want to win.  So much for one person, one vote, right?  I don’t think that is what they did, but I would be the first to denounce it if that is what I believed.

And put aside the reality behind Bush v. Gore, the case also shows how inherently dangerous it is to have a large portion of the population believe that the Supreme Court is more or less corrupt.  I mean that is what activism is, really: corruption.  It is justices disregarding their oaths of office and exercising power not granted to them.  And the problem is that when many people believe that the Supreme Court is corrupt, that they let their politics rather than the law guide their decisions, then it means that we have no neutral umpire in our government.  There is no neutral party that the other branches can go to for fair arbitration.  So when we have a crisis like the one Bush v. Gore represented, we have a very real danger that a large part of the country will not accept their decision as binding.

Anyway, today Obama tried to walkhis comments back, and ended up coming off clumsy again:

MR. SINGLETON:  Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.  But that is exactly what the Court has done during its entire existence.  If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?

THE PRESIDENT:  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.

So it’s not unprecedented to overturn a Congressional law, just one in the area of commercial regulation since around the New Deal, where most people agree it is commerce.  You know yesterday I thought the President couldn’t actually be ignorant enough to believe his words, especially given that he was a Constitutional Law professor at one time, but now I am not so sure.  For instance, Lochner is a 1905 decision, and the Supreme Court struck down many laws purporting to regulate commerce since then and indeed as pointed out in oral argument last week, Lochner concerned itself with state power, not Federal power.  And indeed several laws in the New Deal were also struck down.  I mean what Obama said is just bad history.

And of course Congress has asserted that the Commerce clause has applied to actions that were plainly not commerce, such as carrying a gun near a school or raping a woman.  Now, in those comments Obama seemed to be thinking of those cases when he said it was something that “I think most people would clearly consider commerce.”  Except that most people do not think that sitting on your keister and not owning insurance is commerce.

And what is really inexcusable about all of this is that he knew sooner or later he would be asked about these comments, so he had to have given them some thought, but even then he decided to half-ass the thing.

And it is still a not-very-subtle threat.  We know by now that the reason why the Supreme Court stopped challenging the other branches of government was because FDR threatened their judicial independence with a court-packing scheme.  So all this talk about how it hadn’t been done since the New Deal is plainly a reference to that threat.

And its toothless, too.  Most of the American people do not think this law is constitutional.  And a sizeable chunk of the American people won’t have an opinion on the subject, but will instead trust that the Supreme Court is right so if the Supreme Court declares it to be unconstitutional, that group will decide the Obamacare violates the Constitution.  I consider that a servile way of thinking, but it undeniably exists.  And then you have the crowd that would say somehow it is unconstitutional to strike Obamacare down—but would they even really believe it?  These are often the same people who claim with a straight face that the evangelical Christians who wrote the Fourteenth Amendment were open minded enough about gay people as to have intended—but forgot to write down—a right to gay sex in that amendment.  How many of them even believe what they are shoveling when they say that?  So how much actual outrage are we talking about here?

Anyway, regardless of his walk back, this was either too late or not good enough for the Fifth Circuit which is hearing its own Obamacare challenge right now:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would 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."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

Greta Van Sustern has an image of the letter sent, but since it refers only to the questions during oral argument, and I can’t find a link to that, it’s not very illuminating.  You can read her notes on listening to the oral argument and I am willing to bet she will have audio tonight on her show.

Update: Google is my friend!  I just found the audio that appears to be it.  I will update when I get a chance to listen to it.

And they are specifically asking for a three page single spaced letter.  So really it is almost like an essay assignment as punishment that you might have seen in elementary school where you have to write x number of paragraphs explaining why you should not throw spitballs at other students, or something.

Update (II): I had a chance to listen to the audio from the Fifth Circuit.  I am listening on windows media player.  But if you go to the 18:00 mark you are pretty close to the beginning of this.

You can tell that when they ask her about the power of judicial review that the question is completely out of left field for her.  Here’s my somewhat editorialized transcript, but if you listen for yourself, I think you will confess to my accuracy:

Q: Let me ask you something a little more basic…  does the Department of Justice recognize that courts have the authority in appropriate circumstances to strike down a statute because of one or more constitutional infirmities?

Long pause.

A: Yeee—es your honor.

And here’s my slightly redacted transcript of her thoughts during that long pause, the accuracy of which I am equally confident:

What the f--- is he talking about?  Am I hearing him right?  Okay, go with it.

Really, it is borderline cruel what they did to this poor attorney.  It’s not her fault the President is saying these stupid things.


Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.


  1. Elect an affirmative action president and this is what you get. Anyone want to have an affirmative action doctor?

    1. Hit,

      I wouldn't take it that far. No one gets through law school without knowing these basics. no one. and there is no "affirmative action" on the bar. No, this is O half-assing it.

      I went to a law school that openly practiced affirmative action. Against my will, i might have been a beneficiary. But i can say that in my dealings, i never felt that there was any noticeable drop off between the potential beneficiaries of affirmative action and everyone else.

    2. Obama did not simply benefit from de jur affirmative action and may not have done so at all. As a foreign student he would not have counted as African American. Clearly he was advanced as a student and lecturer the same way he was advanced through his subsequent career which is by Commie-cronyism. The Ayers clan and his Kansas Commie family before that groomed him with no-show jobs to go with his no-show degrees. Yes, Obama is this ignorant. The Presidency is his first real job and he is quite intentionally ignorant but then so is Kagan and Sotomayor. Ginsberg may be less so but she makes up for it with bold antipathy to the Constitution. All these figures need to be impeached immediately but Kagan foremost. Didn't she claim she would recuse herself from any issue she had addressed as SG? Yep, but she would be obliged to recuse herself regardless. She CREATED the arguments she now sits in judgement of and still they fail. Train wreck to plane wreck to global armageddon. There is no way this is not ignorance, stupidity and incompetence unless it is treason and it is my view it is all of these.

    3. Well, apparently Obama managed to.... His later statements about Lochner and other cases display a stunning ignorance of what the case was about: it was a 14th amendment due process clause being applied to a state law, not a commerce clause case! That's why people talk about it as "substantive due process"! Had he written what he said on a ConLaw exam at my T10 law school, he would have received no credit for the question.

  2. I liked Allahpundit's (at homework version also: "I will not question Marbury v. Madison, I will not question Marbury v. Madison, etc."

    1. i missed that part of the post, while scanning it.

  3. The ONLY reason Obama studied Constitutional Law was so knew
    enough about it, to undermine it.

    The mafia calls its 'busting out' a business. Obama has been
    planning a 'bust out' of the US economy since he lived with the Ayers family.

  4. Barack Obama told everyone in 2008 that he had little use for the US Constitution (but he didn't say it in those words). Since then he had pined more than once for the powers a dictator wields.

  5. Paging Chauncey Gardner, Paging Chauncey Gardner.

  6. Obama didn't study constitutional law or any other law, He skated through law school on charm and affirmative action.

    I do have pity on the poor DoJ lawyer who caught the Judge in a bad mood. It ruined her day, and the next 48 hours. Although I am sure they will have some grunt write a mealy mouthed apology to the Judge and Radar will get Eric, I am not paying attention, Holder to sign it. Holder, to my amazement is dumber and less knowledgeable than his boss. I wouldn't hire either of them to do anything as a lawyer, not even plead out a traffic ticket.

  7. It's a joke to say that only liberals call it "judicial activism" when a statute is struck down that that like. Conservatives do it as well.

    I personally have seen this played out too many times. Group X hates a court decision and cries "judicial activism". Group Y says, "Uh, Marbury v. Madison, baby."

    It's so predictable that it is boring. But anyone who thinks it only happens with ONE side and not the other is either stupid or a liar.

    1. Ken

      > It's a joke to say that only liberals call it "judicial activism" when a statute is struck down that that like. Conservatives do it as well.

      Well, then its a good thing I didn't say that.

      Yes, conservatives do complain about judicial activism, too. And sometimes wrongly, even. But EVERY TIME a liberal complaints about activism it is hypocritical and without cause.

      Like for instance, do you seriously believe that it is unconstitutional for LA to kill a child rapist? yes or no.

  8. i miss common sense and dana pico. great site ruined by trolls.

    also, obama was a lecturer, not a professor of constitutional law. a lecturer is a glorified TA.

    1. >> a lecturer is a glorified TA.

      No, they are really not. Not at that level. The only difference between a professor and a lecturer at that level is that the former is full-time and on tenure track.

    2. comments withdrawn, then

  9. Obama didn't study constitutional law or any other law, He skated through law school on charm and affirmative action.
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