|Posted on April 4, 2012 at 6:50 PM|
President Obama has come under fire for comments made in the White House Rose Garden Monday where he suggested it would be “unprecedented” for the Supreme Court to overturn his signature healthcare overhaul. “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," the president said in a meeting with foreign leaders, adding that it would be “unprecedented” that “an unelected group of people would somehow overturn a duly constituted passed law -- well, here's a good example. And I'm pretty confident that this -- this court will recognize that and not take that step."
Of course, having the Supreme Court determine whether a law violates the Tenth Amendment by coercing people into markets is not “unprecedented;” this is what the Supreme Court has done for the 221 years the constitution's existed. That is not “judicial activism,” that is what the Supreme Court was intended to do; ensure that congress does not violate our liberties protected by the Constitution.
In fact, 1,539 times has this “unelected” body of judges overturned all or at least part of federal, local or state laws. Including the 1992 decision of New York v. United States in which the Supreme Court deemed it a violation of the Tenth Amendment for the federal government to force states to buy radioactive material despite the fact that the; thus rendering the creation of commerce, exactly what the individual mandate does, unconstitutional. It’s hardly “unprecedented.”
However, Obama himself is an advocate of judicial activism as he deemed it a “tragedy” that the Civil Rights era courts didn’t overturn the constitution as a charter of “negative liberties:”
To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, says what the Federal government can’t do to you; but doesn’t say what the Federal government or State government must do on your behalf.
In addition to the fact that his own Supreme Court nominee Elena Kagan essentially advocated Judicial Activism as a means to “change” the constitution:
But you — you said something which sort of triggered a thought in me, and I just wanted to — as you said, there are all these many changes that have happened to the Constitution.
And I think it’s important to realize that those changes do come in sort of two varieties. One is the formal amendment process. And I think it was Senator Cornyn yesterday who had talked about the formal amendment process. And that’s tremendously important.
So, you know, when Thurgood Marshall said that this was a defective Constitution, you know, he was talking about the fact that this was a Constitution that counted slaves as three-fifths of a human being, that didn’t do anything about that original sin of our country, and the 14th Amendment changed that. The 14th Amendment was an enormous break after the Civil War, and — and created a different Constitution for America. So partly the changes come in that way.
But — but partly, they — they come outside the formal amendment process, as well. And what you said about Plessy and — and Brown is absolutely right. That if you look at the specific intent of the drafters of the 14th Amendment, they thought that the 14th Amendment was perfectly consistent with segregated schools.
I mean, you just have to — you can’t really argue otherwise as an historical matter.
But in Brown, the court said otherwise. And, you know, step by step by step, decision by decision, in large part because of what Justice Marshall did, you know, we got to a place where the court said it’s inconsistent with the principle of equal protection of the laws that the drafters of the 14th Amendment laid down; is inconsistent with that principle to have segregated schools.
So — so that’s the way in which change can happen, as well.
However, President Obama’s erroneous comments raised criticism of the 5th Circuit Court of Appeals, who sent a letter to the Department of Justice asking for the administration to clarify Obama’s statements, bringing into question Obama’s understanding of constitutional law. From CBS News:
In the hearing, Judge Smith says the president's comments suggesting courts lack power to set aside federal laws "have troubled a number of people" and that the suggestion "is not a small matter."
The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss "judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation."
"I would like to have from you by noon on Thursday -- that's about 48 hours from now -- a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president," Smith said. "What is the authority is of the federal courts in this regard in terms of judicial review?"
Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: "Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?"
Kaersvang replies yes, and Smith continues: "I'm referring to statements by the president in past few days to the effect, and sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- to what he termed broad consensus in majorities in both houses of Congress."
In asking for the letter, Smith said: "I want to be sure you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases."
White House Press Secretary Jay Carney was asked about the questions from the Court, and he responded by trying to clarify that Obama was not talking generally about constitutional law, but that the president was simply saying Supreme Court has historically upheld major economic policy:
What the president said both yesterday and the day before was — what he did was make an unremarkable observation about 80 years of Supreme Court history. Since the 1930s, the Supreme Court has without exception deferred to congress when it comes to Congress’ authority to pass legislation to regulate matters of national economic importance such as healthcare. Eighty years plus. That is an observation and not a particularly remarkable one. It is a statement of fact.
No, Carney, that’s not a “statement of fact.” The 1992 decision in which it was deemed unconstitutional for the federal government to coerce states into buying radioactive materials unanimously proves such.
Clearly, President Obama does not understand constitutional law. Indeed, he has a disdain for it as he wants to continue to run your life. He believes, after all, the constitution is a charter of “negative liberties” because it doesn’t give the state enough control over your life. The Supreme Court and separation of powers, the primary means by which the constitution accomplishes protecting your “negative liberties,” therefore, are brought under scrutiny in Obama’s mind. It is truly telling about what a despotic president we have.
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