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Apr
04

Coequal

Coequal - noun - equal with one another <coequal branches of government> (definition courtesy of Mirriam Webster online)

This country was formed on the premise that there were THREE coequal branches of government - Legislative, Executive and Judicial.  Apparently, in the eyesof President Obama, the Judicial Branch is only coequal when it agrees with his agenda.  When it doesn't.....

President Barack Obama took an opening shot at conservative justices on the Supreme Court on Monday, warning that a rejection of his sweeping healthcare law would be an act of "judicial activism" that Republicans say they abhor.

Obama, a Democrat, had not commented publicly on the Supreme Court's deliberations since it heard arguments for and against the healthcare law last week.

Showing yet again that he does not understand the GOP nor does he know what the meaning of "IS" is.  Judicial activism is MAKING laws from the bench a la Roe v. Wade (and we'll come back to this).

The entire quote (as provided by real life lawyer John Hinderacker at Powerline) is even more telling.

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.

And I — I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an uninelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.

STRONG MAJORITY??????  The bill passed out of the House was 7 votes (after much arm twisting by the Majority Leader and the Majority Whip AND the former Speaker) and only passed out of the Senate after sufficient bribes (Cornhusker Kickback) were passed around as to get a bare partisan majority.  The only thing bi-partisan about this bill was the opposition!

But I will let Mr. Hinderacker continue to explain (in part) why this comment is taking such derisive blowback.

Putting aside the fact that Obamacare passed with anything but a “strong majority” of Congress, the concept of judicial review has been established for over 200 years; for a president not to understand this displays shocking ignorance. Not to mention the fact that most of the liberals’ favorite Supreme Court decisions involved overturning laws that were enacted by democratically elected Congresses or legislatures, e.g., Roe v. Wade, Lawrence v. Texas and many more.

Steven Hayward (who also writes for Powerline) takes the point on the derision.

I’m grateful for the favor Obama did for us yesterday of exposing his extreme constitutional ignorance, with his comments on how it would be “unprecedented” for the Court to strike down a law passed by a “strong majority” in Congress.  (As if a House margin of seven votes is a “strong” majority.)  True, he walked back the comment today, but surely because his statement was not merely indefensible but outright embarrassing to his media defenders.

I’ve been growing weary of hearing people mention that he’s a “constitutional scholar,” since he never published a single thing on the subject either as editor of the Harvard Law Review or as a member of the faculty at the University of Chicago Law School.  But hey—he taught constitutional law, didn’t he?

Not really.

His course on constitutional law, one of several constitutional law courses on the U of C curriculum, dealt exclusively with the equal protection clause of the 14th Amendment—the favorite, all-purpose clause for liberal jurists to use to right wrongs and make us more equal by judicial fiat.  There is no evidence that Obama ever taught courses that considered other aspects of constitutionalism, such as executive power, the separation of powers, the Commerce Clause, or judicial review itself.

Commentary Magazine posted this response.

Presidential chutzpah. Well, at least you can admire him for that perhaps. After all, someone who graduated from Harvard Law School, edited the Harvard Law Review, and taught constitutional law at the University of Chicago Law School must be familiar with Marbury v. Madison. As Wikipedia explains, it’s an important case:

    Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional.” The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

And yet President Obama yesterday implicitly claimed never to have heard of it, allowing him to say regarding Obamacare that it would be an “unprecedented, extraordinary” step for the Supreme Court to overturn legislation passed by a “strong majority of a democratically elected Congress.” The precedents go back 209 years and, as Jonah Goldberg pointed out on “Special Report” last night, the Supreme Court has been overturning acts of Congress ever since, on average every 16 months. So overturning Obamacare would be about as unprecedented as the sun rising in the east tomorrow morning.

James Taranto at the Wall Street Journal, continued the discussion of Marbury in the context of the President's attempt Tuesday to walk back his comments from Monday...

We were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it's no joke: The president is stunningly ignorant about constitutional law.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday's comments: "Mr. President, you said yesterday that it would be 'unprecedented' for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court's done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn't have health care after that ruling?"

Obama's answer to the question was that he expects to win in court, and "as a consequence, we're not spending a whole bunch of time planning for contingencies." He went on to talk at some length about the "human element"--that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend "a whole bunch of time planning for contingencies."

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. 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."

In fact, Lochner--about which more in a moment--was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress's authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).

It is true that in subsequent New Deal cases, the court vastly expanded Congress's power to regulate "interstate commerce," although it has never done what the administration asks it to do now, namely authorize Congress to force individuals to engage in commerce. Obama seems to have been trying to make the accurate observation that since the '30s the court has not struck down a federal law that applies to economic activity on the ground that it exceeds Congress's Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the "liberty of contract," which the court held was an aspect of liberty protected by the 14th Amendment's Due Process Clause. (The legal doctrine at issue, "substantive due process," refers to the meaning of "life, liberty and property" under the Due Process Clause.)

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law--contrary to the president's claim--and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

And the New York Sun editorialized (and reprinted in the Wall Street Journal)

It is the aspersions the President cast on the Supreme Court, though, that take the cake. We speak of the libel about the court being an "unelected group of people" who might "somehow overturn a duly constituted and passed law." This libel was dealt with more than two centuries ago in the newspaper column known as 78 Federalist and written by Alexander Hamilton. It is the essay in which Hamilton, a big proponent of federal power, famously described the Court as "the weakest of the three departments of power." It argued that the people could never be endangered by the court—so long as the judiciary "remains truly distinct from both the legislature and the Executive."

It was precisely the separation of the courts from the other two branches, Hamilton argued, that gives the court its legitimacy. He asserted that "the natural feebleness of the judiciary" puts it in "continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches" and wrote it's "permanency in office"—meaning life tenure for judges—was "an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security." Continued he: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution." Then the famous sentences:

"Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance inall the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. . . .

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority."

Eventually the Supreme Court itself, in the case known as Marbury v. Madison, spelled out the logic of judicial review. We've always felt it was important to note that the Court's authority does not stem from the Court's own assertion of its own powers. It is deeper down, in the writings of the Founders themselves, and part of the American bedrock. It exists at the Federal level and in the constitutions of the states. The idea of separated powers was first put down in plain language in our laws in the constitution of Massachusetts, which noted that the aim was to have a government of laws rather than of men.

It is a mark of our cynical age that Mr. Obama would challenge these assumptions. One can attribute the error of judgment to the fear that once the Court gets its back up and decides to hold the Congress to the powers that are enumerated in the Constitution, it's not just Obamacare that is in danger but the whole regime of runaway power in Washington.

Emphasis mine.

The Affordable Care Act - as it was rammed through, is not Constitutional and the Administration knows it.  They know that there is no justification for the vast over reach of that bill and in true Chicago fashion, the President is attempting to bully his way into getting his way.  Health insurance reform is needed, as we have discussed here in the past, but the Affordable Care Act was not about insurance reform - it was about controlling the actions of a free people.  It was a naked attempt to force a socialistic top down bureaucracy on people and it is being beaten back. 

The President knows this if this is struck down by the Supreme Court (which based solely on the questions asked during deliberations appears to be possible) that his signature legislation is done for.  What little he had to campaign on is gone.  With no accomplishments to run on and a stagnant economy, he know that his re-election chances are slim and for the Campaigner In Chief to know that this may be his last campaign is just too much.

Written by LL.

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