Monday, April 2, 2012

Obama's Deeply Cynical Manipulation Of Public Opinion On Obamacare

This from Obama today when questioned at a news conference about the Supreme Court's review of the Patient Protection and Affordable Care Act of 2010 (PPACA):

So Obama is telling America that it would be an "unprecedented, extraordinary" act of "judicial activism" were "an unelected group of people" to "overturn a duly constituted and passed law" that was "passed by a strong majority of a democratically elected Congress." This deeply cynical man is attempting to poison the well of public opinion in advance of what may be an adverse Supreme Court decision striking down Obamacare, and he is not letting truth or reality slow him down the slightest.

The central purpose of the Supreme Court since Marbury v. Madison was decided in 1803 has been to review laws passed by Congress for constitutionality. There is nothing "unprecedented" or "extraordinary" about it. And Obama's argument against Constitutional review in this case - that because the PPACA was passed by a "majority in Congress" it should pass Constitutional muster - is ludicrous. All laws passed by Congress do so by a "majority" or they don't become law. If the mere passing of a law by Congress were the standard for constitutionality, then no law would ever be subject to review and our Constitution would be just meaningless words with no constraining effect. Update: As Doug Ross points out, the Supreme Court has acted in an "unprecedented" and "extraordinary" manner to strike down over 1,315 laws as unconstitutional in its history.

And let's be completely clear, this new found left wing antipathy for the "unelected group of people" sitting in Constitutional judgment could not be more hypocritical. The left's entire modus operandi for the past fifty years has been to solicit true judicial activism and use the Courts as an end run around democracy and majority rule. For but one recent example, where was the hue and cry from Obama and the left when an unelected Judge in California overruled the votes of 7 million Californians to divine a heretofore never seen right in the Equal Protection clause to gay marriage? Or for another, where was their outcry when the Supreme Court ruled Congress's laws regarding the procedure for handling terrorist detainees unconstitutional in Boumediene? As I recall, Obama was praising that decision. Apparently, constitutional review is only "unprecedented" and "extraordinary" when the ruling might go against the left.

And lastly, to state that striking down the PPACA for violating the Constitution would be an act "judicial activism" is to completely redefine the term. Obama is using that term to confuse the issue as much as possible. He is using it to create the fantasy that it is conservatives on the Court who seek to act without reference to the Constitution and prior precedent, rather than he and the left. Obama is further using this charge to paint the Supreme Court as the enemy of the people. Sounds pretty Bolshevik, doesn't it? It is all BS by the the truckload.

"Judicial activism" occurs when a Court creates new law not supported by the text of the Constitution or by prior decisions of the Court. That's what Congress has done here, not the Courts.

To uphold Obamacare, the Supreme Court would have to vastly expand the power of the federal government under the Commerce Clause. None of the prior cases under the Commerce Clause allow for the government to force people into an act of commerce (see here, with the relevant discussion beginning at page 20.) As Justice Anthony Kennedy pointed out during oral argument, "the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in a very fundamental way."

What that means is that, if the Supreme Court holds Obamacare unconstitutional, they will not have to overturn existing precedent in any way. The federal government would have - unfortunately - exactly the same expansive powers under the Commerce Clause that it had on the day Obama was inagurated. All the Court would have to hold is that the mandate forcing people into commerce is not supported by the text of the Constitution, nor by any of the prior decisions interpreting the Commerce Clause. To do so would be an act of judicial restraint - the polar opposite of "judicial activism." It is the Supreme Court doing precisely what it is meant to do - to keep our government within the constraints of the Constitution.

Obama's not that dumb. He is a former teacher of Constitutional Law, and I am sure that in between teaching classes on critical race theory, he managed to find some time to lead his class through Marbury v. Madison and the Commerce Clause. Rather, he is lying through his teeth in order to motivate his far left base, to effect the opinion of those in the middle who are uneducated on the law, to appeal to those who see the Constitution as an out dated impediment to achieving their goals, and to warn the Supreme Court that they will be demagogued severely if they don't vote his way.

As to the demagoguery, note that this is the second time Obama has made a boogeyman of the Supreme Court for issuing - or in this case, seemingly preparing to issue - a decision that he does not like. The first was his attack on the Court over the Citizens United decision. For that decision, you will recall Obama publicly criticizing the Court at the State of the Union speech in 2010. Imagine the hue and cry from Obama and the left should the Court strike down Obama's signature achievement as unconstitutional. This is shades of FDR who so intimidated the Supreme Court that they gave up interpreting the Constitution and in the end became a rubber stamp for approving the massive accretion of government power under the Commerce Clause. What Obama is exhibiting is not a respect for the rule of law in America, but like FDR before him, a wholesale disregard for it as an impediment to his remaking of our country.

Obama is so intellectually dishonest, he makes Nixon look like a paragon of veracity. Not a single word this man says can be trusted. And no need to take my word for it, just ask Cardinal Dolan. Democracy only works if people have the relevant facts. What Obama is doing is substituting falsehoods for the facts in an effort to subvert democracy.

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