According to a report by legal reporter Jan Crawford on CBS News a few hours ago, a panel of the Fifth Circuit hearing a challenge to Obamacare by physician-owned hospitals ordered the Department of Justice
to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
The order … appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would 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.”
Over on the Volokh blog the usually astute (if not always persuasive) Prof. Orin Kerr writes “No, it’s not The Onion — apparently this actually happened” and argues that “[i]f this story turns out to be accurate, it strikes me as extraordinarily embarrassing to the federal judiciary.” So far most of the commenters seem to agree.
I don’t know whether this order is inappropriate, but I am firmly convinced that mind-boggling embarrassment does justly attach to other institutions and individuals, starting with the president. First, does the president think everyone has forgotten that Obamacare passed the House by only 219-212 and got the the bare minimum of 60 votes in the Senate, hardly a “strong majority.” But that’s minor. What’s major is the remarkable ignorance of constitutional history the one-time professor of constitutional law exhibited. As James Taranto writes in the Wall Street Journal,
We were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it’s no joke: The president is stunningly ignorant about constitutional law.
Taranto was referring to the president’s classic violation today of the sage advice — when you’re standing in a hole, stop digging. Today the president, standing in a hole of his own digging, cast an even brighter light on the vast, dark chasms of his unfamiliarity with the basic facts of American constitutional law and history in his remarks today at an Associated Press luncheon at the American Society of Newspaper editors convention:
MR. SINGLETON: Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence….
THE PRESIDENT: 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 [sic] 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.
Actually, no. Wrong. Here’s Taranto on that “stunningly ignorant” answer:
He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”
In fact, Lochner–about which more in a moment–was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).
And Lochner, as Taranto pointed out, “invalidated a state labor regulation on the ground that it violated the ‘liberty of contract,’which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause,” not an act of Congress under the Commerce Clause.
And then there’s Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), in which the Supreme Court vigorously slapped down President Truman’s claim of emergency power to seize the steel industry to avert a strike during the Korean War. “The Executive Order was not authorized by the Constitution or laws of the United States,” the Court held, “and it cannot stand.” This decision did not invalidate an Act of Congress, but it was, and remains, a telling rebuff to unchecked presidential power.
Forget Marbury v. Madison. Did our reputedly intelligent (just ask him) president learn anything at all in law school, not to mention any American history in college?
The president’s demonstrated ignorance here is in fact so staggering that he should share a not insignificant portion of the embarrassment he ought to feel with Harvard Law School, which gave him a degree despite these huge gaps in his basic knowledge, and with the University of Chicago Law School, which deemed him competent to teach constitutional law.
What he said (he being David Kopel, also on Volokh).
Another observer, Andrew Malcolm, former member of the Los Angeles Times editorial board and Pulitzer finalist in 2004, finds the president’s remarks on Monday and Tuesday “stunningly ignorant.”