Free Markets, Free People

Constitutional limits


Obama’s criticism of SCOTUS hardly “scholarly”

There are times when even I’m a bit surprised at what manages to work its way out of our President’s mouth.  After all, included in what little we do know about the guy is the claim that he was a “Constitutional lawyer”.  He even taught that in Chicago to law students, or so we’re told.

Yet yesterday, in a press conference with the leaders of Mexico and Canada he was asked about the pending Supreme Court decision on ObamaCare and said:

“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.”

I can’t imagine a more supremely arrogant and yet profoundly ignorant statement than that.  Of course, at least in my day, most school children would have understood the ignorance of that statement.

I’ll illustrate it for you if necessary by adding a bit to his words:

“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 that allows whites to lynch blacks.”

Obviously he’d be clamoring for the SCOTUS to overturn a law like that.  And he wouldn’t hesitate to condemn the “strong majority of democratically-elected” officials that passed such a law n the first place (and lets pretend this was signed before he assumed office – you know, Bush did it).  Strong majorities (in the case of ObamaCare it was 219 to 212) passing anything are irrelevant if what they pass is in conflict with the Constitution – period.

In the hypothetical most of us would immediately identify the fact that a) murder and lynching are not within the power of any majority to sanctify and certainly not a power granted in the Constitution and b) it is the job of the Supreme Court to strike down laws that are unconstitutional regardless of how strong the majority voting for it.

I can’t imagine a supposed, or at least self-described, Constitutional scholar making such an ignorant statement to begin with … but there it is.  He then followed it up with this:

“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. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.”

Smartest guy in the room?  I’m sorry, but that just doubles down on ignorance.

As we’ve discussed (most recently on the podcast) it isn’t the job of the Supreme Court to do the job of Congress.   Instead, its job is  to determine whether or not what Congress has done is compliant with the limits the Constitution places on it.  That’s it.  There is nothing which requires the Supreme Court to “fix” laws that Congress has passed.  

Justice Kennedy alluded to this when he said that the removal of the individual mandate would completely change the law in a way that was clearly not what Congress intended.  Thus the “conservative” thing for the court to do would be to strike down the entire law and tell Congress to go back to work.  Of course the Democrats and Obama know that if the entire law is struck down, the likelihood of it being “fixed”, given the Republican House, are remote.  Thus we hear the usual nonsense about “judicial activism” and the other garbage Obama tossed out above making the rounds on the left.

Then there’s the remark about “an unelected group of people”.  My goodness Constitutional scholar, they’re “unelected” and appointed for life for a reason.  And that reason is to remove politics, as much as possible, from their deliberations and allow them to focus entirely on the law and Constitution.  Obviously, it seems, politics haven’t been kept out of the Supreme Court, but for the President to take a juvenile shot like that at the Court while it is in deliberations is fairly outrageous.

Bottom line: If those Obama quotes now illustrate “Constitutional scholarship” in this day and age, this Republic is in very deep trouble.

~McQ

Twitter: @McQandO