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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Scalia & Oral Argument On Obamacare

So will the Supreme Court uphold or strike down Obamacare in whole or in part? It's impossible to project, and I won't try. I will simply note that if they do uphold it, they will be expanding the power of the federal government to the point that it would have the power to force each and every person who participated in the Boston Tea Party to buy East India Trading Company tea. Somehow, I don't think that was within the intent of our Founders when they drafted our Constitution. Our nation will be changed fundamentally.

But all of that said, the Supreme Court arguments were wholly worthwhile if for nothing else than listening to Justice Scalia questioning the Obama administration advocate on why the Obamacare mandate is outside the Constitution and prior Supreme Court precedent.  Do enjoy this.



(H/T Hot Air)

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Obamacare Declared Unconstitutional In Its Entirety

Heh. (H/T Nice Deb)

The much anticipated decision in State of Florida (plus 25 other states' attorneys general) versus U.S. Dept. of Health & Human Services, challenging the constitutionality of Obamacare, has been released. Legal Insurrection has posted the entire 78 page decision.

In an Opinion lauded by law Prof. Ilya Solmin as "thorough and impressive" and by the WSJ as "by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power," Judge Roger Vinson held that Obamacare's requirement that all Americans purchase health insurance (the "individual mandate") is unconstitutional and, therefore, that the entire 2,000+ page Obamacare bill is unconstitutional. Thus, as it stands today, the government cannot enforce any provisions of the act. It's a very good day for America.

Most of the decision was spent discussing the outer limits of Congress's power under the Commerce Clause:

Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

(Const. Art. I Sec. 8)

The Judge reasoned that, if the government were to have the power to regulate inactivity - i.e., the decision not to purchase health insurance - then its power under the Commerce Clause, already massively expanded by a series of decisions beginning in the New Deal era, would be limitless. In deciding that this was beyond any possible interpretation of what our Founder's intended, the Judge opined with the most insightful statement I have heard on the issue to date:

It is difficult to imagine a nation that began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

I will bet a dollar to a dime that the above quote ends up in Scalia's soon to be written (hopefully concurring) opinion on this case. Ultimately, the Court held:

To now hold that Congress may regulate the so-called "economic decision" to not purchase a product or service in anticipation of future consumption is a "bridge too far." It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.

The Court incorporated its previous decision dispensing with the HHS's argument that Obamacare's individual mandate could be justified on the grounds that it was actually a tax. You will recall that Obama repeatedly maintained that the individual mandate was not a tax prior to the vote on the bill. The HHS has now tried to raise the "it's really a tax" argument in four seperate cases. Judge Vinson's refusal to credit this argument marked the fourth case in which it has been denied.

Judge Vinson then went on to dispense with the defendant's other argument, that somehow the Necessary & Proper clause provided a Constitutional basis for upholding Obamacare's individual mandate. The Necessary & Proper clause provides:

Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

(Const. Art. I Sec. 8)

As the Court pointed out, the Necessary & Proper Clause merely authorizes Congress to pass laws in furtherance of its enumerated powers. It was never intended to act independently to give Congress additional powers beyond those enumerated in the Constitution.

Having determined the individual mandate unconstitutional, the judge then turned to the issue of whether the rest of the 2000+ Obamacare bill must also be deemed unconstitutional. This turned on the legal doctrine of "severability." It is customary to include a "severability" clause in bills and contracts. Such a clause provides that, should any individual clause in the bill or contract be deemed void, unenforcable or unconstitutional, all of the remaining clauses shall still be deemed enforcable.

In the case before the Court, the defendants made a significant tactical error in stipulating that the individual mandate was of such importance that it could not be severed from the 2,000+ page Obamacare bill without the entire construct failing. And lest there be any doubt on that issue, the Court pointed out that Congress saw fit to remove a severability clause from the bill before passing it. After going the additional step of independently assessing that, yes, in fact, without the individual mandate, the rest of the bill would fail, the Court declared the entire Obamacare bill unconstitutional.

(Update: Apparently, Congress's failure to include a severability provision in the Obamacare bill was merely an "oversight." Heh.)

This was by far the most well reasoned decision of the four decisions decided on this issue to date. There are still two to three cases pending at the district court level on the constitutionality of Obamacare. Expect this case and its sister cases to be heard at the Appellate Court level in the next year, then on to the Supreme Court, where the decision will likely turn on which side of the bed Justice Kennedy happens to wake up. In any event, this is a very important decision, both for its reasoning and the breadth of the Court's decision.

Update: Let the wailing and gnashing of leftist teeth commence. By far the most ridiculous of the left wing lamentations thus far comes from Brian Buetler at TPM, who charges that the Court has engaged in "extreme [judicial] activism."

There is a yawning chasm that sets apart "judicial activism" from the proper role of a court - to determine original intent and, in light of that and precedent, give an intellectually honest appraisal of the law. When you hear a leftie embrace the "living constitution" theory, what they are championing is real "judicial activism," not originalism and adherence to precedent. So when the left starts hurling around charges of "judicial activism," you can rest absolutely assured that they are engaging in a bit of Orwellian "tendentious redefinition." And lo and behold, that is precisely what Buetler does in this case.

Buetler claims the courts decision here is "judicial activism" because . . . ipse dixit, it is because he says it is. Buetler doesn't explain how the judge strayed from the original intent of the drafters (which he didn't), nor where the judge's decision violated precedent (it didn't). Instead, Buetler is upset that the judge concurred with both Congress and the HHS that the individual mandate is not severable. To quote fron another individual with at least the same degree of legal scholarship as Mr. Buetler, though far more intellectual honesty, "what a maroon."



Others blogging this issue:

WSJ - The Constitutional Moment: Judge Vinson Introduces Obamacare To Madison & Marshall
Jennifer Rubin/WaPo - Left Unprepared For Obamacare Ruling
The Volokh Conspiracy - Today’s Florida District Court Ruling Striking Down the Obamacare Individual Mandate
Maggies Farm - 26 States Belly Up To The Bar: ObamaCare Unconstitutional
Doug Ross - Federal Judge To Nancy Pelosi, "Yeah Lady, We're Quite Serious"
Legal Insurrection - Florida Judge Rules Against Obamacare, Injunction Denied As Unnecessary Since Entire Law Unconstitutional
Cato - Florida Ruling Requires Government to Stop Implementing Obamacare
Powerline - Florida Judge Rules Obamacare Unconstitutional
Neo-Neocon - (with a Pelosi cameo) Obamacare ruled unconstitutional–for now
Pirate's Cove - Snap! Being Forced To Purchase Health Insurance Like Buying A TV
Right Pundits - Obamacare Unconstitutional; Individual Mandate Nullifies Entire Bill
Bookworm Room - A Blow To Obamacare
No Sheeples Here - Obamacare Dead In Its Tracks
The BlogProf - Victory
Nice Deb - Just A Reminder

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EJ Dionne Redefines Judicisal Activism

EJ Dionne, writing at the Washington Post, projects his own fantasies onto the question of the approval process for a Supreme Court nominee. He argues that the nominating process has always been politicized - not true. And he argues that judicial activism is the hallmark of the right - not only untrue, but insipid and outrageous. Mr. Dionne is attempting to redefine the term "judicial activism."

According to EJ Dionne, the nominating process for appointment to the Supreme Court has always been politicized by both Republican and Democtrat.

To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty. It's better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to "character," "qualifications" or "temperament."

That is palpably false. The nomination process became politicized when the left established as a litmus test that a Judge must acknowledge his obeidiance to Roe v. Wade and that line of cases finding rights that appear nowhere in the test of the Constitution. That very destructive turn of events started under Joe Biden with the hearings for Robert Bork - a hearing so highly politicized as to create of the nominee's name a verb - "borking." Certainly none of the Clinton appointments, Justices Ginsburg or Breyer, were subject to the political circus by the right that surrounded Justices Bork, Thomas, or any of the other Republican appointees since. Indeed, Justice Ginsburg, who has taken some pretty radical positions over the years, sailed through the nominating process - based on her charachter, qualifications and judicial temperament - with almost no Republican dissent. EJ Dionne is simply projecting the left's partisan approach onto Republicans without bothering to check the record.

While Dionne's projection may be false, his next statement is outrageously false:

Today, judicial activism is far more the habit of conservative justices than liberals. The real danger of a conservative Supreme Court is that it will rob Congress and the states of the right to legislate on civil rights, worker rights, the environment and social welfare, just as conservative courts did from the turn of the last century until the late 1930s.

Wow. This is the left's tried and true rhetorical device of redefining words far our of their original meaning. Conservative justices are associated with originalism - the belief that the Constitution should be interpreted to mean what the Founders who drafted the Constitution meant the words to mean at the time. And indeed, if enough Americans disagree with what they wrote at the time, the Constitution provides several methods by which the American people can democratically chage the Constitution. Until the left took over the Court in the last half century, that is how changes were repeatedly made.

But the left of today believes that they can redefine the Constitution to whatever they want it to mean, irregardless of what the Founders meant or, for that matter, whatever the text explicitly says. That is why there is no longer a takings clause prohibition against government taking private property and giving it to another private entity, despite the explicit words of the 5th Amendment. Its why, for the first time in the history, prisoners taken on a battlefield are entitled to court hearing using a habeus petition. Its why there is now a "wall between church and state" that clearly never existed before twentieth century and does not appear in the text of the Constitution. And its why there is today not a state legislated right to abortion, but a Constitutional one founded upon absolutely nothing in the text of the Constitution.

Interestingly, what Dion is referring to is the question of whether the commerce clause has been interpreted by the Supreme Court far beyond the terms of its original meaning. It is also a red herring. Even the most conservative of justices on the Supreme Court has not argued for a wholesale reinterpretation of the commerce clause. It is a very complex issue. But that is certainly not what the disingenuous Mr. Dionne posits. He wants a Supreme Court that will turn us into a far left nation based on the whim of Justices who share Dion's beliefs, irrespective of what our Founders wrote. That is real "judicial activism." And Mr. Dionne is obviously willing to dissimulate to get it.

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