Obama Plays Offense
April 4, 2012 9 Comments
President Obama’s recent warning about the conservative Supreme Court potentially overturning Obamacare was the right thing to say, and long overdue.
Ultimately I’m 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.
The conservative side of our political fight is very well-funded and quite adept at creating political myths, including that of left-wing judicial activism. It’s factual in that the conservatives are still quite upset that the courts occasionally supported the Civil Rights movement, but it’s fictional in that our current courts are very conservative and the activism is along the lines of Bush v. Gore (handing the presidency over to the Republicans) and Citizens United (handing the right of speech over to the wealthy).
The progressive political movement could do more with its limited resources by taking the terms concocted by the conservatives (such as judicial activism) and applying them (with greater accuracy) against the conservatives. This is where the president can lead the way, with the so-called bully pulpit. I was very happy to hear him do so, albeit a couple years late.
UPDATE ON 4/5
Jeffrey Toobin on judicial overreach, including the recent hissy fit by U.S. 5th Circuit Court of Appeals Judge Jerry Smith.
About Matthew
But just to be technical, isn’t the court “overturning a law that was passed by a strong majority of a democratically elected congress” every time they overturn a law? And isn’t that part of their job? If the law is deemed unconstitutional, who cares how strong the majority was that passed it?
I happen to support this law (weakly), but I do think Obama makes an odd argument. And I am not nearly as optimistic as he that the court will let it stand.
It’s not always a strong majority, no, and in this case they’d also be overturning court precedents going back to the New Deal…but in any case, I think the larger point is that these effective (to many demographics, albeit not including you) arguments about the courts should not be ceded to the right. The conservatives have helped push the country’s policies to the right in part by making these sorts of arguments about the courts, and I think that the progressives need to start working the refs the way that conservatives do.
I also suspect that Obama is secretly pessimistic about what the Court will do, or he wouldn’t have felt the need to make this statement. And yes, I would be much more enthusiastic on many levels about single payer or at least a public option.
I’d argue that overturning laws is not the job of the SCOTUS. President Obama may be manoeuvring to keep the Justices from throwing out the entire ACA. The argument would be that unconstitutional elements of the ACA are null and void but not the entirety of the law.
Jeffrey Toobin takes several steps back from plane-on-train wrecks to point to a time when SCOTUS had a less activist, more deferential relationship to laws and lawmakers.
http://www.newyorker.com/talk/comment/2012/04/09/120409taco_talk_toobin
“[T]he Justices had no trouble upholding the Civil Rights Act of 1964, which used the [Commerce] clause to mandate the integration of hotels and restaurants. “It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination,” Justice Tom C. Clark wrote, for his unanimous brethren. “But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress.” …. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.”
I am more impressed by what Obama went on to say. He linked the ACA with the tangible benefits it has for real people. From what I’ve read all of the conservative Justices have questioned what impact the act will have on insurance companies.
If only the mandate is excised while the remainder of the law stands then biggest impact will be on insurance companies That can’t be something the Kennedy-to-Thomas spectrum wants. If SCOTUS rules against the ACA then President Obama would want to trap and keep the Justices within a more limited use of their power.
And just like that, up goes the Obama campaign’s video: Mitt Romney versus reality
Wow. So they haven’t forgotten how to campaign, and they’re not going to forget Mitt Romney’s actual words. That’s unfortunate for Mittens.
Hmmm…over 1300 incidents isn’t a precedent? 7 votes is a strong majority? Obama’s not so good at math, history, or law apparently.
The other funny thing is Liberals whining that the court should not throw out all of the law, only the unconstitutional parts and to do otherwise would be to overstep their authority.
ObamaCare was written without a severability clause and it is not the role of the SCOTUS, in any case, to rewrite laws. To do anything but either pass or strike down the law as a whole is what would be usurping powers not belonging to the SCOTUS.
I don’t know of over 1300 incidents in which the Supreme Court has curtailed the Congressional use of the Commerce clause. I presume that it’s a conservative meme, and I also presume that it’s new, as conservatives didn’t seem to have much problem with the mandate when they were either coming up with the idea themselves (the Heritage Foundation) or promoting it as the solution to the shame of not covering citizens with health care (Mitt Romney). As I’ve said quite frequently, I really wish that President Obama had not selected the conservative option, as it wins him no favors politically (as is obvious from all of the conservative attacks) and it is also much worse policy (covering fewer people at a higher cost).
I see the suggestion that the Supreme Court rule on what is constitutional rather than tamper with the actual law as a suggestion that they not legislate from the bench.
Finally, I do like to keep the comments civil and minus personal attacks, so if you want to use it as a place to say that I’m whining, please carry on elsewhere.
Ah, but the quote in this post doesn’t reference the commerce clause and the SCOTUS has deemed various laws unconstitutional a little over 1300 times to date.
If one sticks strictly to the SCOTUS striking down post-New Deal excesses under the Commerce Clause, one only has to go back to 1995′s United States v. Lopez decision for precedence.
As for “personal attacks” – I made a generalized statement about the tone of Liberals in this matter. It was not cut to fit you in particular.
To take issue with President Obama’s critique of Supreme Court activism, you’re either expanding way beyond what he’s talking about (to every case of a law being overturned) or focusing in on a smaller part of the picture (to just the vote in the House, as opposed to all of Congress).
As for the way in which the Supreme Court is acting differently now, I’m going to quote from the Jeffrey Toobin article that 0dysseus references above.
Again, I think it’s telling that the conservative movement only discovered its virulent opposition to the individual mandate once it became something Obama supported as it is an idea born from that very same conservative movement.