The Campaign Spot

President/Constitutional-Law Lecturer Keeps Losing at the Court

On the front page of the Washington Post today, Robert Barnes notices that the administration headed by a former constitutional-law lecturer keeps losing at the Supreme Court, and it’s not even that close sometimes:

The Supreme Court this week will conclude its term by handing down much-anticipated rulings on health care and immigration, President Obama’s remaining priorities before the justices. It is a finale that cannot come quickly enough for the administration, which has had a long year at the high court. In a string of cases — as obscure as the federal government’s relationships with Indian tribes and as significant as enforcement of the Clean Water Act — the court rejected the administration’s legal arguments with lopsided votes and sometimes biting commentary.

Then again, as the Post noted yesterday, the legal strategy in the Obamacare case comes from the man at the top:

Obama, a former constitutional law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty.

Many liberals had criticized Solicitor General Donald B. Verrilli Jr. for a halting performance during the oral arguments on the case in March. But while Verrilli took the lead in shaping the government’s case, the broader strategy being questioned in some circles stemmed from a close partnership between the solicitor general’s office and the White House — with the strategy securing Obama’s approval.

And when the oral arguments concluded, Obama’s initial comments seemed to suggest he rejected the notion of judicial review, comments he had to walk back days later:

Attorney General Eric H. Holder Jr., bowing to an unusual demand of the United States Court of Appeals for the Fifth Circuit, in New Orleans, made official the backpedaling of the past few days over remarks by President Obama about the Supreme Court’s coming ruling on the constitutionality of his health care overhaul. Mr. Obama said on Monday that it “would be an unprecedented, extraordinary step” for the court to overturn the law.

Ever since, the White House has been struggling to explain what the president meant. Mr. Obama himself tried to clarify things on Tuesday, explaining that “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.”

. . . Mr. Obama, himself a constitutional lawyer, never tried to defend the literal meaning of his words; apparently he meant either to express a more subtle thought or merely to voice a common campaign point about how judges sometimes overreach.

“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,” he said on Monday.

Because the vote by which the health care law was enacted was razor-thin and largely partisan, and because the court’s powers have been established since Marbury v. Madison in 1803, the president’s words were false on both counts, declared.

And of course, Obama’s criteria for what makes a good Supreme Court justice was, in fact, an argument for unfairness; he disputed the notion that justice is blind, saying a Supreme Court justice should approach a decision with empathy for those affected by the ruling, a standard that Sonia Sotomayor herself disagreed with in her confirmation testimony.

But other than that, Obama knows this constitutional-law stuff backwards and forwards.

Actually, it’s not lack of knowledge; as President Reagan said, “the trouble with our liberal friends is not that they’re ignorant; it’s just that they know so much that isn’t so.”


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