I spoke last night at a symposium on “The Obama Presidency” at the University of California at Berkeley. In a radical city known sometimes for its liberal anger, it won’t surprise you, many of those in the audience were upset at the prospect of the Supreme Court’s overturning part or all of Obamacare. After all, Berkeley voted 88 percent for Obama in 2008. But almost no one present at the symposium was as petulant as President Obama was yesterday, when he incorrectly claimed that if the Court rules against his landmark legislation it would be taking “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
The implication of his statement was that he hasn’t heard of Marbury v. Madison, in which the Supreme Court laid down the doctrine of judicial review in 1803, and by which the Court can strike down unconstitutional laws. Indeed, since 1981, the Court has struck down 57 specific legislative acts of Congress, an average of two per year.
The president’s statement was so extraordinary that a three-judge panel of the Fifth Circuit Court of Appeals ordered the Justice Department to answer by Thursday whether the administration indeed respects the right of court to declare acts of Congress unconstitutional. As CBS’s Jan Crawford reported, Judge Jerry Smith became “very stern,” telling the lawyers arguing a separate case on the constitutionality of Obamacare that it was not clear to “many of us” whether the president believes such a right exists. He also noted Obama’s remarks yesterday in the Rose Garden about judges being an “unelected group of people.” The court was clearly not amused.
Even some liberals believe the president went too far yesterday. Ruth Marcus, an editorial writer who covers the Supreme Court for the Washington Post, said Obama’s assault “stopped me cold . . . for the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.” It was a mistake for Obama to “declare war” on the court, says Jon Meacham, a contributing editor of Time magazine. Voters don’t like hearing assaults on the Supreme Court itself, probably because Americans believe “life needs umpires, even ones who blow calls now and then.”
So it is surreal for Obama, a former constitutional-law professor and president of the Harvard Law Review, to go after the court as if he were a demagogue seeking reelection. As the Wall Street Journal put it: “Obama’s inner community organizer seems to be winning out over the law professor.”
Nor is this the first time the president has stepped out of line. During a joint session of Congress in January 2010, Obama lectured the Supreme Court justices sitting in front of him that they got it wrong in the Citizens United case, which swept away key campaign-finance restrictions on First Amendment grounds. “Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.” Obama’s statement that the Court’s ruling allowed political contributions by foreigners was plainly incorrect, earning a “Mostly False” rating from the PolitiFact website. No wonder that Justice Samuel Alito was observed by lipreaders mouthing the words “Not true” after Obama’s groundless attack.
No one believes the Supreme Court will rule on the constitutionality of Obamacare based on bush-league attacks on its integrity. But Obama’s misstep is only the latest in a series of blunders that further undermine his position. The presentation by Solicitor General Donald Verrelli last week before the Supreme Court was widely panned by legal scholars as weak and evasive. Verrelli caused even some liberal lawyers in the audience to wince when he preposterously claimed that Congress has passed Obamacare to deal with a serious problem “after long study and careful deliberation.” Whatever you want to call the chaotic, late-night brow beating of reluctant members to pass something — anything — to reform health care two years ago, it wasn’t pretty and it was far from careful. Recall that Senate Democrats forgot to include a standard severability clause in their drafting of the bill, which would allow the entire law to stand even if one provision is deemed unconstitutional.
And when it got to the legal substance, the Obama Justice Department didn’t do much better. “The court began where it should have begun with limiting principles (to the federal government’s power),” noted Jonathan Turley, a well-known liberal law professor at George Washington University. “And what was remarkable is that the administration seemed almost unprepared or unwilling to answer those questions with any clarity.”
The incoherence with which the Obama administration has addressed the entire issue of its signature domestic achievement continued yesterday when the president began a spat with the judiciary that was factually wrong, fatuous, and one he can’t possibly win. Several of the liberals I spoke with at Berkeley last night could only shake their head at how the man they voted for on the basis of ”hope and change” in 2008 looks like he’s in over his political head.
— John Fund, a writer based in New York, is the author of Stealing Elections: How Voter Fraud Threatens Our Democracy.