April 10 2012
The Washington Post’s The Fact Checker takes the nation’s premier former constitutional law professor to task for getting his facts completely wrong when speaking recently about the Supreme Court.
Here is the statement from Professor Obama that Fact Checker considers:
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.”
Fact Checker “took the liberty of re-phrasing” the remarks to get at the ideas behind what the president was saying; it removed the word “unprecedented,” which the president has since softened, but kept the word “extraordinary.” it made it clear that the president was talking about a law that dealt with economics. But the president’s statement is still riddled with errors:
First, Congress didn’t pass the Affordable Care Act with a strong majority. The vote in the House of Representatives, for instance, was 219 to 212, with no Republicans supporting and 34 Democrats opposing the measure.
Second, Obama issued his first set of remarks during a news conference in which he wasn’t specifically asked for his thoughts on how the Supreme Court should rule. A reporter simply inquired about how the president would proceed if the health-care law is overturned. The question was: “How would you still guarantee health care to the uninsured and those Americans who’ve become insured as a result of the law?”
Instead of answering that hypothetical, Obama offered his version of legal history and explained why the statute should be upheld. Critics say he was essentially lecturing the justices.
The Post notes that it has been a long time since the Supreme Court overturned a “sweeping” law that applies to almost all citizens. Social Security and Medicare, for example, were upheld by the Court. The issue is Social Security was Congress’s power to tax, and the issue in the Affordable Care Act is the Commerce Clause.
Fact Checker notes:
Many of the right-leaning legal experts we talked to acknowledged that the modern Supreme Court has largely — but not entirely — shown deference to Congress when it comes to such matters. But some noted that the court has shown no such restraint when deciding whether statutes involve commerce in the first place.
The article is well worth reading in its entirety but the final word is that President Obama earned two Pinocchios from Fact Checker for his remarks on the court:
Ordinarily, we would not expect a president to know the intricacies of Supreme Court cases, but we hold Obama to a high standard because he used to teach law and because in his remarks he tossed around references to particular cases (“at least since Lochner”).
If the Court upholds the Affordable Care Act, the president will be singing its praises, of course. I believe that, if this happens, conservatives will make appointments to the Court a key issue in the upcoming election. But unlike the president, they won’t argue against the Court’s historic role and they won’t try to set up a situation in which a willful executive can usurp the authority of the Court to get his way.