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The Sacramento Bee


Obama Would Smear Court To Save Health Law

April 06, 2012

By Ben Boychuk

With President Barack Obama’s health care law in apparent jeopardy, the president and his supporters are preparing for an unfavorable U.S. Supreme Court ruling by attacking the judiciary’s very legitimacy.

No surprise. As Alexis de Tocqueville once observed, all major political questions in the United States tend to become judicial questions. In an era of sharp partisan division – during an election year no less – certain judicial questions are profoundly political as well.

After the government took a pounding during three days of oral arguments before the justices last week, Democrats told any reporter who would listen that the Supreme Court risked undercutting its own authority if the Patient Protection and Affordable Care Act were to be struck down.

Obama himself began the week with a pre-emptive strike on the court, remarking what "an unprecedented, extraordinary step" it would be to overturn a law "passed by a strong majority of a democratically elected Congress."

"I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law," Obama said Monday. "Well, here’s a good example. And I’m pretty confident that this court will recognize that, and not take that step."

Of course, the president is entitled to his opinion. He just happens to be completely wrong.

Obama knows that the Supreme Court overturns laws, if not all the time, then often enough. The concept of judicial review is centuries old and well established. As of 2010, the Supreme Court had tossed out 165 laws "duly constituted and passed" by Congress.

So much for "unprecedented" or "extraordinary."

What’s more, the court has voided legislation that enjoyed a great deal more popular and political support than "Obamacare" has today. Some of those laws passed with near-unanimous backing from Republicans and Democrats. The "strong majority" behind the Affordable Care Act, by contrast, consists of a narrow, seven-vote margin in the House of Representatives, a now-defunct 60-vote majority in the Senate, and no Republicans whatsoever.

Worse, Obama mischaracterized what conservatives mean when they criticize judicial activism. The argument over Obamacare is an argument about limits. Most conservatives believe that the Constitution prescribes what the federal government may and may not do. Conservatives reject the idea that the Constitution is a "living document" that changes with time and circumstance.

Conservatives argue that progressive jurists abandoned an older, natural-rights based understanding of the Constitution in favor of rights discovered in the document’s "penumbras" and "emanations." Instead of sticking with the framers’ understanding of limited government, jurists based sweeping decisions on such vagaries as "the evolving standards of decency that mark the progress of a maturing society" and other such rot.

After more than a half-century of twisting the Constitution into something James Madison would scarcely recognize, only now do progressives find solace in the age-old doctrine of stare decisis – the principle by which judges respect precedents established by prior decisions.

But liberals certainly didn’t fret when "an unelected group of people" overturned "duly constituted and passed laws" when it came to birth control (Griswold v. Connecticut), gay rights and sodomy laws (Romer v. Evans, Lawrence v. Texas), or abortion (Roe v. Wade, Planned Parenthood v. Casey).

The president attempted to clarify his remarks on Tuesday but instead he only compounded his mistake. "The point I was making," he said, "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."

But that isn’t quite right, either. Each branch of the government – whether it’s the executive, the legislative or the judiciary – has duty to support and maintain the Constitution. No single branch has the last word, and no one branch may usurp the powers of the others.

Obama has a bad habit of demagoguing the court. During his 2010 State of the Union, with the justices seated just a few yards away, Obama shamelessly misconstrued the court’s decision in Citizens United v. FEC, saying the ruling undid "a century of settled law." That was nonsense – the ruling merely reversed two decisions, the oldest from 1990. But the damage was done.

Faced now with the possible demise of his crowning domestic policy achievement – itself an "unprecedented, extraordinary" extension of federal power – the president would happily smear the high court again.

The truth is, overturning Obamacare wouldn’t be an act of judicial activism. It would be an act of constitutional restoration.

Original Source:



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