Judicial Review

The Left Suddenly Uncomfortable with Concept of Judicial Review

Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare.  Yesterday he somewhat toned down his remarks, but still managed to step in it.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”

As James Taranto points out, this response is wrong on multiple levels.  The case that Obama cites in fact pre-dates the New Deal by a good thirty year.  Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation.  As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters.  And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional.  In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.

But other than that, I guess Obama was spot on.

The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review. Continue reading

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