By Bill Wilson — In a recent press conference, Barack Obama suggested “overturning a law that was passed by a strong majority of a democratically elected Congress”, referring to the health care law, was “an unprecedented, extraordinary step”.
Even if that were true, what is not new is Obama’s latest court intimidation scheme.
For one, it’s not the first time he has brazenly lashed out at the Supreme Court. In his 2010 State of the Union Address, Obama blasted the Court after it struck down restrictions on McCain-Feingold campaign speech and expenditures as a violation of the First Amendment.
He even went so far as to mischaracterize the Court’s ruling in Citizens United with the entire nation watching, with the justices sitting right in front of him. He said, “the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”
That was when Associate Justice Samuel Alito famously mouthed the words, “Not true” to Obama’s assertion.
The ruling actually had nothing to do with foreign donations to candidates, nor did it lift the federal ban on corporate donations to candidates. It affected whether third party organizations in the United States could independently spend money electioneering during campaign periods.
But that didn’t stop Obama. He simply did not like the Court’s ruling, so he falsely painted the decision as some sort of foreign coup de tat.
Of course, this is not the first time a president has lashed out at the Court.
Earlier in American history, Andrew Jackson blasted the Court’s decision in Worcester v. Georgia by supposedly saying, “John Marshall has made his decision; now let him enforce it!”
Later, Franklin D. Roosevelt infamously threatened to pack the Court with additional, compliant justices after it ruled against his Mussolini-inspired National Industrial Recovery Act. That was a law that would have nationalized the entire economy into government-sanctioned cartels.
Fortunately, the Court had overturned it in Schechter Poultry Corp. v. United States, writing, “There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce.”
After Roosevelt’s threat, the Court notably flipped its interpretation of the Commerce Clause, overturning precedent and issuing the exact opposite opinion just seven years later in Wickard v. Filburn. This was perhaps the most dramatic expansion of Congress’ power in American history, and it began a 70 year experiment with authoritarianism.
In that case, the Court finally invented the doctrine that even if commerce was not taking place among the several states — even if it was a farmer who was growing food merely for his own consumption — it could still be regulated.
In fact, the premise for Obamacare and the individual mandate rests on that proposition — that even those not engaged in commerce may be regulated. A favorable ruling by the Court on Obamacare would actually be the natural extension of that doctrine.
An unfavorable ruling, however, would actually return to the earlier precedent set forth in Schecter.
So, for Obama to get on his high horse and complain that such a decision would be “unprecedented” is just pure nonsense.
By his telling of history, where the Supreme Court would be “unprecedented” in striking down a duly enacted law, ignores the entire 209-year history of jurisprudence since Marbury v. Madison. That was when the Court famously asserted the implicit power of judicial review to strike down acts of Congress that exceeded constitutional authority, writing in the words of Chief Justice John Marshall that the Court’s role was to “say what the law is”.
Obama is supposedly a constitutional law professor? What was he even teaching? Has he read any history of the Constitution? If we take him at his word today, it would appear all he read were the Cliff’s Notes.
But let’s leave aside Obama’s seeming ignorance of what the Court’s traditional role has been in the Republic. He knows what judicial review is. The fact is, Obama had no problem when the Warren Court undid precedent — he even praised it while suggesting it did not go far enough, lamenting that the Court “could not break free from the essential constraints placed by the Founding Fathers in the Constitution.”
And now, because the Court is signaling it may be returning to some of those constraints, Obama is attempting to intimidate the Court by delegitimizing it. That is what is truly behind this intimidation. Which is what you’d expect from a thug dictator like Hugo Chavez or Robert Mugabe, not from the President of the United States. Overtly attacking the Court in such a shameless way is beneath the dignity of his high office.
It may be nothing new, but that does not make Obama’s attack on the Court any less contemptible either.
One hopes that even if he does not embrace the likely ruling against Obamacare’s constitutionality, he at least complies with it. If not, we may well have an extraordinary constitutional crisis on our hands just months before the election.
Bill Wilson is the President of Americans for Limited Government.