“Unprecedented”

President Obama says that it would be “unprecedented” for the Supreme Court to strike down Obamacare:

I am confident 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.

Wow, every single thing in this sentence is false. Clearly, Obama is not confident. The law was not passed by a strong majority (four votes in the House and zero in the Senate). The Congress was not democratically elected (the winning margin in the Senate came from Paul Kirk, who was appointed to the body after Edward Kennedy died — an appointment that required an 11th hour change in the law).

But most absurd is the suggestion that it would be unprecedented for the Supreme Court to strike down a law, even if all those things were true. Judicial review has been part of our system since Marbury v. Madison in 1803 struck down a provision of the Judiciary Act of 1789. The Judiciary Act was adopted in the very first session of the United States Congress. All told, the Supreme Court has struck down 165 laws as unconstitutional.

How could a man who taught constitutional law at the University of Chicago say such a thing? Did he never teach Marbury v. Madison? As it turns out, no, he didn’t. Obama taught Constitutional Law III, which covers exclusively the 14th Amendment. So Obama never taught separation of powers or checks and balances, which makes a lot of sense when you consider his actions.

This was too much for the American Bar Association. It was too much for the Democratic apologists at Politifact. And it was too much for the 5th Circuit Court of Appeals:

A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.

One justice in particular chided the administration for what he said was being perceived as a “challenge” to judicial authority — referring directly to Obama’s latest comments about the Supreme Court’s review of the health care case.

The Justice Department, of course, had to acknowledge the principle of judicial review, although it laughably asserted that Obama’s remarks were consistent with it.

Obama later tried to walk back his remarks:

He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we’re going back to the ’30s, pre-New Deal.”

Again, Obama doesn’t sound much like a constitutional scholar here, or he would have known that Lochner was in 1905, not during the 1930s. But that’s a nitpick. More to the point, it’s complete nonsense. The Supreme Court has struck down provisions from plenty of economic laws since 1905; including Sarbanes-Oxley just two years ago.

More generally, the problem here is that Obama doesn’t understand (or willfully misrepresents) what judicial activism means. In his original remarks, before the walkback, Obama went on to say:

I just remind conservative commentators that for years we have heard 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.

No. Judicial activism is when the courts render decisions based on their political preferences, rather than on meaning of the law. It’s not judicial activism whenever the Supreme Court strikes down a law. On the contrary, if the law is unconstitutional, it would be judicial activism to leave it standing.

Unfortunately, progressives tend not to believe (or tend not to care) that the law has any meaning independent of current politics. For example, Obama cautioned the court:

The justices should understand that in the absence of an individual mandate you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care.

Again, that’s complete nonsense, but again, that’s beside the point. The point is, this is a policy argument, not a legal argument. Only a judicial activist would even find it relevant.

POSTSCRIPT: Fortunately, it doesn’t seem to be working. Even Obama’s own allies are saying publicly that his attack on the Supreme Court is ill-considered. And the Supreme Court’s approval rating has risen dramatically since Obama began his attack.

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