I am Obama and I can attack the Supreme Court

President  Obama sets the stage for a political assault on the Supreme Court

President Obama says that the Supreme Court would be taking an “unprecedented, extraordinary step” by overturning the Patient Protection and  Affordable Care Act (Obamacare), since the act was passed by “a strong majority  of a democratically elected Congress.” Although the president’s statement  confirms his membership in the fraternity of left-wing constitutional law  professors (over 100 of whom signed a statement defending the constitutionality  of the act), he is wrong on both the history and the math.

Since when is a 219-212 House majority “strong”? But even if Obamacare had  passed by large margins in both houses, that would be irrelevant to the Supreme  Court’s decision. Whether the law represents good health care policy is also  irrelevant. The question before the court is not whether the law is popular or  good policy. The question is whether Congress had the constitutional authority  to enact it.

President Obama knows this. He would not accuse the Supreme Court of  unprecedented judicial activism if it invalidated a federal law restricting  abortion or a state law purporting to override the president’s Keystone XL  pipeline decision. To the contrary, he would respectfully defer to a judicial  holding of unconstitutionality (in the first case under the due process clause  and in the second under the supremacy clause), even if the invalidated laws were  enacted by truly strong majorities.

Declaring Obamacare unconstitutional would not be unprecedented. According to  the Government Printing Office, the Supreme Court invalidated as  unconstitutional a total of 1,539 laws between 1789 and 2002. Of that number,  158 were acts of Congress. No doubt President Obama agrees with the court’s  constitutional interpretation in some of those judicial rulings and disagrees in  others, just as he likely agrees with the policies behind some of those  invalidated laws and disagrees with others.

But whether a law is constitutional and whether it is good policy are  entirely different questions. When courts invalidate laws on the grounds of bad  policy, it is judicial interference in the constitutional role of the  legislature. When courts invalidate laws on the grounds of an absence of  legislative authority, they are performing their constitutional responsibility  as set forth by Chief Justice John Marshall in the seminal case of Marbury  vs. Madison. Unfortunately modern political debate confuses the two,  leaving liberals and conservatives alike to cry judicial activism whenever the  courts invalidate one of their favored laws.

It would be too much to ask that the general political debate rise above this  partisan distortion of the judiciary’s critical role in enforcing the liberties  of individuals and the constitutional limitations on government power. But it  should not be too much to ask that our constitutional law professor president  forgo his penchant for hyperbolic rhetoric when it comes to addressing a  co-equal branch of government.

Two years ago, President Obama had the unmitigated gall to dress down the  justices of the Supreme Court in his State of the Union Address. Now he is  laying the groundwork for a political assault on the court should it find his  health care legislation to have exceeded Congress’s constitutional  authority.

Like so many who have preceded and followed him in the legal academy, the  president seems to view the rule of law as nothing more than a cover for  politics and the aggregation of power. So long as he’s got power, he seems fully  intent on using it with little regard for the Constitution.

I am Obama and yes I can do whatever I want. I do not answer to anyone or the US Constitution.

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