Research

The Big Fail: “Unprecedented”

President Obama Attacked the Supreme Court, But His Political Rhetoric Is Simply False

OBAMA PUBLICLY CRITICIZED THE SUPREME COURT IN BACK-TO-BACK EVENTS

President Obama:  “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.” (President Barack Obama, Press Conference, Washington, D.C.,  4/2/12)

  • President Obama:  “The Burden Is On Those Who Would Overturn A Law Like This.” PRESIDENT OBAMA: “Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce—a law like that has not been overturned at least since Lochner.  Right?  So we’re going back to the ’30s, pre New Deal. And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.  And so the burden is on those who would overturn a law like this.” (President Barack Obama, Remarks At Associated Press Luncheon, Washington, D.C., 4/3/12)

BUT HIS ATTACK WAS NOT SUPPORTED BY HISTORY OR LEGAL PRECEDENT

FactCheck.org:  “President Obama Is Being Forced To Modify His Absurdly Wrong Claim That It Would Be ‘Unprecedented’ For The Supreme Court To Strike Down The New Health Care Law.” “President Obama is being forced to modify his absurdly wrong claim that it would be ‘unprecedented’ for the Supreme Court to strike down the new health care law. He made that statement April 2 in a news conference…As any number of others were quick to point out, there is ample precedent for the Supreme Court voiding laws passed by Congress. In fact, overturning unconstitutional laws has been part of the Supreme Court’s job description for more than two centuries. And the health care law wasn’t passed by a ‘strong’ majority, either. In the House, the final vote was 219 to 212, with all Republicans and even 34 Democrats voting in opposition.” (Brooks Jackson, “Obama Eats His Words,” FactCheck.org, 4/4/12)

  • Since 1803, It Has Been Well-Settled That “Judges Must Decide What The Law Is” And “The Constitution Overrides Any Act Of The Legislature.” “The first precedent for overturning a law — as many high-school civics classes teach — was in 1803 when the high court declared a portion of the Judiciary Act of 1789 to be unconstitutional. That was the landmark case of Marbury v. Madison. Chief Justice John Marshall declared for the court that judges must decide what the law is, and must be guided by the principle that the Constitution overrides any act of the legislature…Surely the president knew that when he spoke; he was a senior lecturer in constitutional law at the University of Chicago, after all. And as recently as January 2010, the president complained in his State of the Union Address about a much more recent precedent. In his words, ‘the Supreme Court reversed a century of law’ through its decision in Citizens United v. the Federal Election Commission, holding that the government may not keep corporations or unions from spending money to support or oppose candidates in elections.” (Brooks Jackson, “Obama Eats His Words,” FactCheck.org, 4/4/12)
  • President Obama “Attempted To Walk Back What He Had Said Earlier,” Saying The Court Should Show “Significant Restraint And Deference To Our Duly Elected Legislature.” “The president then attempted to walk back what he had said earlier, stating that he referred to overturning laws ‘on an economic issue,’ and said the court had not done that since the 1930s…The president went on to say that ‘the Supreme Court is the final say on our Constitution and our laws,’ in effect taking back his ‘unprecedented’ remark. He explained that he had been trying to make the point that ‘it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.’ Perhaps so, but ‘significant restraint’ is a far cry from ‘unprecedented.’ Furthermore, it is a matter of opinion whether the health care law’s requirement for individuals to obtain health insurance is an ‘economic’ issue that falls under Congress’ right to regulate interstate commerce, as the law’s defenders argue, or a matter of individual rights, as its opponents say. That’s the very question before the court.” (Brooks Jackson, “Obama Eats His Words,” FactCheck.org, 4/4/12)
  • President Obama “Misstated The Facts” On Constitutional Precedent. “The president would have been within his rights to say that the Supreme Court hasn’t overturned a law like the health care legislation since the days when judges refused to allow limiting the workweek to 60 hours. That’s a matter of opinion with which anyone may agree or disagree. But he misstated the facts (and stirred up avoidable trouble for himself) when he said it would be ‘unprecedented’ to overturn a law passed by Congress.” (Brooks Jackson, “Obama Eats His Words,” FactCheck.org, 4/4/12)

Politifact:  “There’s Simply No Support For The Assertion That The Law Was Passed By A ‘Strong Majority.’” “First, let’s review Obama’s statement: ‘Ultimately, I am 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.’ There’s simply no support for the assertion that the law was passed by a ‘strong majority.’ It was passed along party lines in a sharply partisan climate, and the 60 votes in the Senate were the minimum needed to keep Republicans from bottling it up in a filibuster.” (“Obama Attaches Stark Terms To Possible Supreme Court Ruling On Health Care Law,” Politifact, 4/4/12)

  • ObamaCare Passed Congress By Narrow Margins, With The Senate Getting “The Exact Minimum Needed To Prevent A Filibuster—Not A Vote More.” “In the case of the health care bill, the House and Senate had each passed different versions in 2009. It was expected the two bills would be integrated in conference committee, then voted on again. But before that could happen, the Democrats lost their 60-seat, filibuster-proof majority in the Senate. (Republican Scott Brown in January 2010 won the seat formerly held by the late Sen. Edward Kennedy, D-Mass.) Anything that came out of conference committee at that point could have been held up in the Senate, blocked by 40 Republican senators. Democrats decided to get around this by having the House simply accept the Senate’s version of the bill. Then Democrats in the House and Senate used a different measure—a reconciliation bill, which requires only a simple majority—to modify the law they had just passed. The vote to pass the Senate version of the bill had been 60-39. The bill passed the House 219-212 on March 21, 2010. Numerically speaking, neither vote reflects a very large margin of victory. In the Senate, 60 votes was actually the exact minimum needed to prevent a filibuster—not a vote more. And in both chambers, not a single Republican voted for the bill.” (“Obama Attaches Stark Terms To Possible Supreme Court Ruling On Health Care Law,” Politifact, 4/4/12)

Politifact:  “It’s Without Question That The Supreme Court Overturning A Law Passed By Congress—By Any Margin—Is A Common And Routine Occurrence, And By No Means Without Precedent.” “But the ‘unprecedented’ idea is more nuanced. It’s without question that the Supreme Court overturning a law passed by Congress—by any margin—is a common and routine occurrence, and by no means without precedent…However, Obama’s elaboration a day later at least gives us more to think about. He argued that invalidation of the health care law would represent a court action unseen since the Great Depression on an issue that affects every American…But we’re taking Obama literally, and that historical perspective was not reflected in his original statement, which is what we’re ruling on. He simply said the law passed with a strong majority and overturning it would be unprecedented. Wrong and wrong. We rate the statement False.” (“Obama Attaches Stark Terms To Possible Supreme Court Ruling On Health Care Law,” Politifact, 4/4/12))

  • Since 1803, There Have Been “Numerous Examples Of The Supreme Court Tossing Laws Passed By A “Democratically Elected Congress.” “The Supreme Court routinely reviews laws passed by Congress and either upholds or overturns them. For Obama to suggest that such an action would be unique in American history is something of a head-scratcher. We could name numerous examples of the Supreme Court tossing laws passed by a ‘democratically elected Congress,’ starting with Marbury vs. Madison, in 1803. For a more recent example, Senate historian Don Ritchie cited the 1990 Gun-Free School Zones Act, which made it a federal offense to knowingly possess a firearm in a school zone. But in United States vs. Lopez, the court said the federal government could not use the commerce clause to restrict guns. ‘Lots of laws have been overturned,’ Ritchie said. ‘That’s what the Supreme Court does.’” (“Obama Attaches Stark Terms To Possible Supreme Court Ruling On Health Care Law,” Politifact, 4/4/12)

WHAT OTHERS ARE SAYING ABOUT OBAMA’S “ASTONISHING REMARKS”

President Obama Ignores Precedent Of Judicial Review In His “Astonishing Remarks” About The Supreme Court. “President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison? That’s a fair question after Mr. Obama’s astonishing remarks on Monday at the White House when he ruminated for the first time in public on the Supreme Court’s recent ObamaCare deliberations. ‘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,’ he declared. Presidents are paid to be confident about their own laws, but what’s up with that ‘unprecedented’? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a ‘democratically elected’ legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by ‘strong’ majorities. As it happens, probably stronger majorities than passed the Affordable Care Act. Readers may recall that the law was dragooned through a reluctant Senate without a single GOP vote and barely the 60 votes needed to break a filibuster. Despite a huge Democratic majority in the House, it passed by only 219-212.” (Editorial, “Obama vs. Marbury v. Madison,” The Wall Street Journal, 4/3/12)

The Washington Post:  “President Obama’s Comments Monday About The Supreme Court Were Jarring.” “President Obama’s comments Monday about the Supreme Court were jarring. If the court were to strike down the health-care law, Mr. Obama said, it would be a blatant example of judicial activism. That ‘an unelected group of people would somehow overturn a duly constituted and passed law,’ the president said, would be ‘an unprecedented, extraordinary step.’ Well, not exactly, and the comments strayed perilously close to a preemptive strike on the court’s legitimacy if it were to declare the individual mandate unconstitutional.” (Editorial, “President Obama’s Reversal On The High Court,” The Washington Post4/3/12)

  • President Obama Would Be “Wise To Be, Well, More Judicious In Commenting About The High Court.” “As we said last week, after the oral arguments had concluded, it is troubling that some liberal supporters of the law are preemptively trying to delegitimize a potential defeat, as if no honest justice could possibly disagree with the mandate’s constitutionality. The president’s initial remarks added unnecessary fuel to this contention. Given the power of the bully pulpit, presidents are wise to be, well, more judicious in commenting about the high court.” (Editorial, “President Obama’s Reversal On The High Court,” The Washington Post4/3/12)

The Washington Post’s Ruth Marcus: Obama’s Comments On The Supreme Court “Stopped Me Cold.” “And yet, Obama’s assault on ‘an unelected group of people’ stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning ‘a duly constituted and passed law.’ Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality. The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is ‘the gravest and most delicate duty that this court is called on to perform.’” (Ruth Marcus, Op-Ed, “Obama’s Unsettling Attack On The Supreme Court,” The Washington Post’s Post Partisan,” 4/2/12)

  • The Supreme Court Is Unelected “Precisely To Insulate Them From Public Opinion.” “But the president went too far in asserting that it ‘would be an unprecedented, extraordinary step’ for the court to overturn ‘a law that was passed by a strong majority of a democratically elected Congress.’ That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to ‘a group of unelected people’ precisely to insulate them from public opinion.” (Ruth Marcus, Op-Ed, “Obama’s Unsettling Attack On The Supreme Court,” The Washington Post’s Post Partisan,” 4/2/12)
    • Ruth Marcus: “We Want Our Judges Unelected. We Want Them To Have The Final Constitutional Say.” “We want our judges unelected.  We want them to have the final constitutional say. The president should be arguing for a second term to prevent the court from tipping in an even more conservative direction, not channeling tired critiques from the right about activist judges legislating from the bench.” (Ruth Marcus, Op-Ed, “Obama’s Unsettling Attack On The Supreme Court,” The Washington Post’s Post Partisan,” 4/2/12)

President Obama Leveled “An Attack On The Court’s Standing And Even Its Integrity.” “It’s been a long time since we’ve heard a presidential demarche as outrageous as President Obama’s warning to the Supreme Court not to overturn Obamacare. The president made the remarks at a press conference with the leaders of Mexico and Canada. It was an attack on the court’s standing and even its integrity in a backhanded way that is typically Obamanian.” (Editorial, “Ex Parte Obama,” The New York Sun, 4/2/12)

  • Obama Cast “Aspersions” On The Supreme Court And Spoke “Libel About The Court.” “It is the aspersions the President cast on the Supreme Court, though, that take the cake. We speak of the libel about the court being an ‘unelected group of people’ who might ‘somehow overturn a duly constituted and passed law.’ This libel was dealt with more than two centuries ago in the newspaper column known as 78 Federalist and written by Alexander Hamilton. It is the essay in which Hamilton, a big proponent of federal power, famously described the Court as ‘the weakest of the three departments of power.’ It argued that the people could never be endangered by the court — so long as the judiciary ‘remains truly distinct from both the legislature and the Executive.’ It was precisely the separation of the courts from the other two branches, Hamilton argued, that gives the court its legitimacy.” (Editorial, “Ex Parte Obama,” The New York Sun, 4/2/12)