Hypocrisy in the Court

by Brian Bolduc

On Monday, President Obama admonished the Supreme Court to uphold his health-care law, lest it overturn the legislation in a fit of “judicial activism.” The president told reporters: “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.”

Last year, however, the president took the “extraordinary step” of declaring “a law that was passed by a strong majority of a democratically elected Congress” unconstitutional. In February 2011, Attorney General Eric Holder sent Speaker of the House John Boehner a letter notifying him that the administration would no longer argue in behalf of the Defense of Marriage Act.

On September 21, 1996, President Bill Clinton signed DOMA into law. It passed both houses of Congress by wide margins (342–67 in the House and 85–14 in the Senate) — much wider margins than Obamacare got (219–212 in the House and 60–39 votes in the Senate). The problem, of course, is that the administration disagrees with DOMA: The law enshrines traditional marriage in federal law and allows states to ignore same-sex marriages approved by other states.

And so the democratic process must yield to the administration’s preferences. “Pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3,” Holder wrote Boehner.

Yesterday, the president clarified — that is, revised — his remarks. “We have not seen a Court overturn a law that was passed by Congress on a economic [emphasis added] 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,” he told reporters. He also doffed his hat to the principle of judicial review: “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.”

Deference, yes; submission, no.

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