Is Obama at war with the federal courts?
On Monday afternoon, Obama held a joint news conference with Prime
Minister Stephen Harper of Canada, and President Felipe Calderon of
Mexico. The two other men expected to talk about trade among their three
respective countries. But someone asked Obama whether he had anything
to fall back on, should the Supreme Court rule that his health care
reform bill was unconstitutional. Herewith his verbatim reply:
I think the justices should understand, in the absence of
an individual mandate, you cannot have a mechanism to ensure that
people with pre-existing conditions can actually have health care. So
there is not only an economic issue; there is a human issue. Ultimately,
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.
The United States Supreme Court, with several March for Life participants in the foreground. Photo: CNAV files
Breitbart quickly reminded readers of the last time that Obama threatened the Supreme Court. In Citizens United v. Federal Elections Commission, the Court held, per curiam
(i.e., unanimously), that joint-stock corporations have as much right
to advertise on political issues as have the trade unions. A furious
Obama took them to task in the middle of his State of the Union Address.
Obama said that the Court had thrown out centuries of precedent and now
would let “special interests” and even overseas companies “interfere”
in American politics. That prompted Justice Samuel J. Alito to mouth
back silently, “That’s not true.”
On Monday Morning, Representative Jim Clyburn (D-SC) had already advised Obama to run against the Supreme Court. According to Breitbart, Obama seemed to be taking Clyburn’s advice.
The Fifth Circuit Court answers Obama
That was bad advice. Clyburn was wrong to give it, and Obama
was just as wrong, or more wrong, to take it. Yesterday the Court of
Appeals for the Fifth Circuit answered Obama’s challenge. During oral argumentJerry in Physicians Hospitals of America et al. v. Kathleen Sebelius et al.,
Judge Jerry Smith frostily asked Dana Lee Kaersvang, the attorney for
the government, to explain whether the government acknowledged that
courts may strike down laws that those courts deem unconstitutional.
Kaersvang readily acknowledged the obvious case, Marbury v. Madison. But she insisted that the health care reform bill was still constitutional.
So Smith assigned her what looked like the kind of homework that teachers assign to punish impudent schoolchildren:
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.
Later yesterday, Obama sheepishly said:
The point I was making is that the Supreme Court is the
final say on our Constitution, and all of us have to respect it,” he
said. “But it’s precisely because of that extraordinary power that the
court has traditionally exercised significant restraint and deference to
a duly elected legislature.”
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