SAN DIEGO, April 9, 2012 — President Obama shocked reporters last week with comments about the Supreme Court. Even the normally uncritical press corps was obliged to ask, “do you really think the Court can’t strike down an act of Congress as unconstitutional?”
The Court’s nine justices will announce their decision on the constitutionality of the Affordable Care Act (ObamaCare) in June. At stake is a very specific question of Federal power: Can Congress command citizens to purchase something they don’t want? Is personal freedom in jeopardy despite fancy merchandising slogans such as “affordable health care,” or endorsements encouraging Congress “to pass the bill to find out what’s in it?”
We may agree that Tootsie Roll Pops sound delicious, but most prefer to decide for themselves whether to bite into its crunchy outside to discover the chewy center. Our Supreme Court justices are doing some chewing of their own in the form of deliberations, which may end by striking some (or even all) of Obama’s signature accomplishment.
Obama didn’t seem to think that anyone, even a judge, should ever have cause to disagree with his wise legislation:
“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. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step,” (Rose Garden Press Conference, April 2, 2012).
Those were Obama’s initial words. Much has happened since then, including a request for clarification from the 5th Circuit Court of Appeals, reassurances from Attorney General Eric Holder, and White House Press Secretary Jay Carney offering reporters some verbal gymnastics that would make Shakespeare blush.
In the midst of this political drama, Obama’s opinion has been walked back, re-explained, parsed, sliced, diced, stirred, stretched and de-stenched so that all Americans can sleep better at night, finally reassured once and for all as to what he truly meant to say.
It’s not much of a reach to guess that what Obama said the first time is probably what he meant. The phenomenon of “original intent” applies to all words, not merely our Constitution. But then, even “Statement One” demonstrated strategic ambiguity. It was a stroke of genius, as politically savvy as they come; a win/win for Obama no matter what happens.
Step right up! See President Obama take two positions at the same time! If the Supreme Court upholds his health care law, well, of course, he was confident that they would. He knew it all the time. After all, judicial review is a time honored American tradition. Our respected justices affirmed his health care mandate so clearly, it may as well have been a neon light, smack in the middle of our Constitution’s Commerce Clause.
On the other hand, if the Court doesn’t uphold this law, Obama has a new election talking point to join other classic gems such as “The rich must pay their fair share,” “Republicans are the party of no,” and 7000 recitations of “I got Osama bin Laden.” Now our president/candidate can also portray himself as the man who stands for democracy rather than judicial activism.
But what is this judicial activism that the President refers to? According to Conservapedia:
Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. “Judicial activism” is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.
Interestingly enough, Obama embraced what many would call a road to judicial activism when his Justice Department filed a law suit against an Arizona immigration law.
And how about judicial activism overturning California’s marriage law, put in force by democracy to the tune of some seven million voters?
When his Press Secretary was asked for a reaction to California’s legal conflict, Carney, as usual, spoke as clearly as Obama himself:
“I’m not going to comment on litigation particularly as here where we are not party to it, but the president’s positions on these issues writ large are well known, and he’s long opposed divisive and discriminatory efforts to deny right and benefits to same-sex couples,”(White House Press Conference, 2-7-12).
This is not to say Obama has no track record at all for embracing state rights. When running for office in 2008, Obama had an interesting exchange with Pastor Rick Warren regarding same-sex marriage:
WARREN: Define marriage.
OBAMA: I believe that marriage is the union between a man and a woman. Now, for me as a Christian — for me — for me as a Christian, it is also a sacred union. God’s in the mix. But —
WARREN: Would you support a Constitutional Amendment with that definition?
OBAMA: No, I would not.
WARREN: Why not?
OBAMA: Because historically — because historically, we have not defined marriage in our constitution. It’s been a matter of state law (CNN 8-16-2008).
And so, with Rick Warren, Obama affirmed the idea of matters being left to the states. Only one problem: When asked that same year for his opinion of Prop 8 which attempted to make marriage a state issue, Obama said:
“I think it’s unnecessary. I believe marriage is between a man and a woman. I am not in favor of gay marriage. But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that’s not what America’s about” (MTV interview, November, 2008).
OK. It’s all so clear now: Obama believes marriage is a union between a man and a woman but he doesn’t think we need a federal law stating as much because state laws are sufficient even though in the case of one of these states called, California he disagrees that they should have such a law and when their law is overturned, his Press Secretary can offer no decipherable comment.
Yes, state rights are a tricky, delicate thing for this President. Over half our states filed suits against government mandated health care leading to current Supreme Court deliberations. Obama will not be crying for these states if his health care law is upheld. But just in case health care is not upheld, he expresses a preemptive strike concern over what an “unelected group of people might somehow overturn.”
Actually, Supreme Court Justices do get confirmed by Congress even though Obama calls them “unelected.” Perhaps he was confusing justices for some of his czars.
In any event, Obama has his bases covered for June. He will offer a convincing speech against judicial activism should his prized law be sent down the laundry shoot. We’ll be reminded that it was “conservative extremists” who did so, justices appointed by Republican presidents. We will not hear Obama elaborate on the constructionist philosophy openly embraced by certain conservative justices who seek to find original intent so that the Constitution being enforced is the same one our Fathers actually wrote.
Of course, if the decision goes Obama’s way, it is doubtful that he’ll be expressing concern about liberal justices, two of which (Elena Kagin and Sonia Sotomayor) he nominated himself.
Elena Kagan’s bias doesn’t seem to keep Obama up at nights, even though she helped with the very health care law in question.
“Emails between Supreme Court Justice Elena Kagan and members of the Obama Administration reveal she was more involved with President Obama’s health-care law than was disclosed previously. The documents likely will lead to a revival of questions about whether Kagan should recuse herself from future cases. Specifically, the documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011” (Amanda Carey, The Daily Caller, 5-18-11).
Kagin certainly holds no monopoly on bias. It comes in many forms. For example, Sonia Sotomayor, in her 2001 law school speech at Cal-Berkeley said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Exactly how does race, gender (or both) arrive at a “better conclusion” when, supposedly, the task of a justice is to read what the Constitution says, apply it to a current law in question, and then enforce our ruling document?
Ruth Bader Ginsburg, (a third liberal justice and Clinton appointee) might want to take a crack at that question. In fact, we may have heard part of her answer already in an interview with Al Hayat in Egypt where she boldly said: “I would not look to the United States Constitution if I were drafting a constitution in the year 2012” (Al-Hayat TV, 3-30-12).
And so, as our liberal and conservative Supreme Court continues deliberating, the Obama campaign machine prepares to offer either possible verdict as a reason to grant him a second term.
Rallying Cry A: “Vote for our vindicated President who gave you health care,”
Rallying Cry B: “Vote to vindicate our President who gave you health care until those mean and nasty conservatives swiped it away as easily as a criminal steals candy from a baby.”
Either strategy will do. The only important word, after all, is vote.
Bob Siegel is a weekend radio talk show host on KCBQ and columnist. Details of his show can be found at www.bobsiegel.net
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