Thursday, April 5, 2012

Judicial Restraint, ObamaCare and Improper Jawboning by the President

President Obama appears to be terribly worried about what the Supreme Court will decide with respect to the constitutionality of his signature legislation, ObamaCare.

Otherwise he wouldn't have tried the very recent un-presidential tactic of jawboning or arm-twisting the Court into supporting the legislation when it renders its decision in June.

For 209 years the Court has been empowered to decide whether legislation is constitutional. Marbury v. Madison was handed down in 1803 and stands for what is known as the doctrine of judicial review, meaning simply that the Supreme Court ultimately rules on a law's constitutionality. And before that in 1788, Alexander Hamilton in Federalist paper 78 said the same thing. And so on.

So if even a poorly performing first year law student understands all of the above, what was the learned former professor and now President Obama trying to achieve with his ultra-amateurish commentary?

Well, perhaps he was speaking "directly" to Justice Anthony Kennedy, the likely swing vote on the Court in what could be a 5-4 decision, with Kennedy's being the fifth and deciding vote.

As an attorney and former professor of constitutional law, President Obama knew or at least should have known better than to use his office to attempt to influence the Court's opinion. That he acted as he did demonstrates that presidential politics matters most to him.

Ex Parte Obama is an excellent editorial, so we'll quote it in its entirety:

"The following editorial appeared April 2 in the online New York Sun:

It's been a long time since we've heard a presidential demarche as outrageous as President Obama's warning to the Supreme Court not to overturn Obamacare. The president made the remarks at a press conference with the leaders of Mexico and Canada. It was an attack on the court's standing and even its integrity in a backhanded way that is typically Obamanian. For starters the president expressed confidence that the Court would "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."

Reuters's account noted that conservative leaders say the law was an overreach by Obama and the Congress. It characterized the president as having "sought to turn that argument around, calling a potential rejection by the court an overreach of its own." Quoth the president: "And I'd just remind conservative commentators that, for years, what we have heard is, 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."

It is outrageous enough that the president's protest was inaccurate. What in the world is he talking about when he asserts the law was passed by "a strong majority of a democratically elected Congress"? The Patient Protection and Affordable Health Care Act barely squeaked through the Congress. In the Senate it escaped a filibuster by but a hair. The vote was so tight in the house—219 to 212—that the leadership went through byzantine maneuvers to get the measure to the president's desk. No Republicans voted for it when it came up in the House, and the drive to repeal the measure began the day after Mr. Obama signed the measure.

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 in all 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."

Summing Up

President Obama's attempt to jawbone or arm-twist the Supreme Court may just backfire. In any event, he must be terribly concerned about his signature legislation to make such a blatant and un-presidential effort to persuade the Court to not rule the law to be unconstitutional.

In fact, his motives, facts and reasoning all were off base.

As a former professor of constitutional law, or even as a former law student, he had to know better.

But as the President, perhaps he's just desperate about the outcome and its potential long range consequences.

Whatever the case, we'll know how all this turns out by the end of June.

Thanks. Bob.

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