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    President Obama preemptively slammed the Supreme Court as an "unelected group of people" who will have turned to "judicial activism or a lack of judicial restraint" if they decide to strike down ObamaCare; his signature legislative achievement.  "I just remind conservative commentators that for years we have heard 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 am pretty confident that this Court will recognize that and not take that step," President Obama said at a White House event in the Rose Garden on Monday.

    Obama Don't Care_0.jpgAnd—in a thinly-veiled threat to the Court—Obama said, “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.”

    Kentucky’s senior senator, U.S. Senate Republican Leader Mitch McConnell, was quick to respond on Tuesday to the president’s remarks:

    "Regardless of the Supreme Court’s decision on ObamaCare’s unprecedented mandate on the American people, elected leaders have an obligation to protect our system of checks and balances. The President, more than anyone else, has an obligation to uphold the legitimacy of our judicial system. But his remarks on the Court reflect not only an attempt to influence the outcome, but a preview of Democrat attacks to come if they don’t get their way.

    McConnell 0405b.jpg“Only someone who would browbeat the Court during the State of the Union, and whose administration stifled speech during the health care debate, would try to intimidate the Court while it's deliberating one of the most consequential cases of our time.  This president's attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”

    W. James Antle, III, writing in The American Spectator, had an excellent summary of the president’s position on "judicial activism:”  “Just as he did when he lectured the justices about Citizens United, Obama plans to demagogue any Supreme Court ruling that is unfavorable to his health care program. The same president who holds Roe v. Wade inviolate, a decision that invalidated the laws of all 50 states on an issue no one had previously imagined to be under federal jurisdiction, will inveigh against judicial activism.”

    Obama Professor.jpgBut what about President Obama’s suggestion that he doubted the Court would take “…an unprecedented, extraordinary step of overturning a law…?”  If he really did teach Constitutional Law in Chicago, he would surely know that the U.S. Supreme Court has declared a total of 1,315 laws (as of 2002, the most recent year for which statistics are available; the GPO database may be updated in 2012) unconstitutional using the process of judicial review.

    The first time the Court declared a federal law unconstitutional was in Chief Justice John Marshall's opinion for Marbury v. Madison, 5 US 137 (1803), in which he asserted Section 13 of the Judiciary Act of 1789 was unconstitutional because it extended to the Supreme Court an act of original jurisdiction not explicitly granted by the Constitution.

    Supreme97_1.jpgUnconstitutional and Preempted Laws 1789-2002

    According to the GPO (Government Printing Office Database):

    • 158.  Acts of Congress Held as Unconstitutional
    • 935.  State Statutes held unconstitutional
    • 222.  City Ordinances held unconstitutional
    • 224.  State and City laws preempted by Federal laws
    • 1,315.  Total State, Local and Federal Laws Declared Unconstitutional
    • 224.  Total State and Local Law Preempted by Federal Laws
    • 1,539.  Total Laws Overturned, all governments

    We are left to decide whether President Obama was being disingenuous or simply uninformed, when he made this outrageous suggestion.

    And as to the president’s contention that ObamaCare is “…a law that was passed by a strong majority of a democratically elected Congress," his definition of “strong majority” needs a bit of disambiguation.  Sneaked through the congress without debate (no congressman has yet come forward to claim he read the thing), it passed the Senate by only one vote.  Only Democrats voted for the law and it passed the House by just seven votes despite a three-fifths Democratic majority in that chamber.  And, at the election the following year, many of the representatives who voted for the law were “democratically un-elected.”

    This just in:  Today, Senator McConnell spoke out again against the President’s attempt to intimidate the Supreme Court in remarks delivered to the Rotary Club of Lexington, Kentucky:

    “I had originally planned to come over here today to talk about the economy and jobs. But President Obama made some comments about the Supreme Court earlier this week that troubled me, and that should trouble every American, frankly, and they demand a firm response. So if you’ll allow me, I’d like to start with that.

    “First, some context. As you’re all aware, last week the Supreme Court heard arguments for and against the President’s health care law. This is the same bill Congress passed two years ago on Christmas Eve on a straight party-line vote by the slimmest of margins after some backroom deals got it over the finish line. This bill is still deeply controversial. And if you believe the polls, most Americans think it’s unconstitutional.

    “Well, fortunately, in matters of constitutional interpretation, we’ve got a final arbiter in this country, and that’s the Supreme Court. So I and many others brought our legal arguments to the Court last week. And after a careful study of the law and the precedents, and after weighing the arguments on both sides, the Court will make its final determination. Whether I agree with it or not, I’ll respect the decision.

    “But, apparently, President Obama didn’t like the tenor of some of the questions the justices asked about the health care law during last week’s hearings, questions that highlighted the unprecedented power that the administration now has over your and everybody else’s health care as a result of its passage.

    “So earlier this week, the President did something that as far as I know is completely unprecedented: he not only tried to publicly pressure the Court into deciding a pending case in the way he wants it decided; he also questioned its very authority under the Constitution.

    “And if anybody had any doubt about that, it should have been dispelled on Tuesday, when a federal appeals court ordered an administration lawyer to clarify whether the administration does, in fact, believe that the courts of the United States of America have the right to determine whether laws passed by Congress violate the Constitution. This was a clear response to the President’s comments from earlier in the week, and proof positive of the signal it sent to the judiciary.

    “Now, the President’s words were particularly troubling given his past treatment of the Court. Two years ago, he used a State of the Union Address to publicly chastise the Court for its decision in another case he didn’t like — with members of the Court sitting just a few feet away.

    “He looked at the line that wisely separates the three branches of government, and stepped right over it. But what the President did this week went even farther. With his words, he was no longer trying to embarrass the Court after a decision; rather, he tried to intimidate it before a decision has been made. And that should be intolerable to all of us.

    “Let me be clear: I have no idea what the court will decide in this case. My own preference is well known. If the Court upholds the law, I’ll be disappointed. I’ll disagree with it. But I’ll respect its independence. And then I’ll continue to do everything I can to have this law repealed through the legislative channels that remain available.

    “But here’s something I won’t do: I won’t mount a political campaign to delegitimize the Court in the way some in Congress have been urging this President to do, and in the way that he started to do earlier this week in the Rose Garden. I’ll respect the Supreme Court, even when I disagree with it.

    “Why? Because at the end of the day, it’s the judiciary that ensures we’re a nation ruled by laws, not the whim of a President or a particular Congress. That’s why the Founders made sure the people who sit on the courts have lifetime appointments. It’s why the Constitution explicitly prohibits Congress from lowering their pay. It’s why justices enjoy the freedom to decide cases as they see fit, even if it means upsetting the very President who appointed them.

    “The truth is, if this law’s in trouble, it’s because giving the government this much power is hard to defend, not because a few justices had the temerity to suggest as much.

    “But the President seems to be saying that you’re an activist if you’re not stretching the limits of the limited powers the Constitution gives to the federal government.

    “This is not about what I think of the President as a person. It’s what I think of the duties of the office he’s sworn to uphold.

    “We can all disagree about the merits of a President’s policies. But the American people should be able to expect that their President will defend the independence of the Court, not undermine it, safeguarding and strengthening our country’s institutions, not actively weakening them.

    “The President crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it. The independence of the Court must be defended. Regardless of how the justices decide this case, they’re answerable, above all, to the Constitution they swore to uphold. The fact that this President does not appear to feel similarly constrained to respect their independence doesn’t change that one bit.

    “So respectfully, I would suggest the President back off.

    “Let the Court do its work. Let our system work the way it was intended. The stability of our system and our laws and our very government depends on it. And the duties of the Presidency demand it.”

    ---------------'s The Arena section features opinions from active participants in the city's politics. Their viewpoints are not those of (a website is an inanimate object and, as such, has no opinions).  The Arena is read by more people in Louisville than in any other city in America.

    Thomas McAdam's picture

    About Thomas McAdam

    At various times I have been a student, a soldier, a college Political Science teacher, a political campaign treasurer, and legal adviser to Louisville's Police Department and Board of Aldermen. I now practice law and share my political opinions with anyone who will listen.

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