Who Should Be Embarrassed?

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.”

Say What? (5)

  1. milowent April 4, 2012 at 10:15 am | | Reply

    i simply don’t believe that Obama doesn’t know the Supreme Court can rule things unconstitutional. he wanted to publicly suggest that overruling this would be unprecedented judicial activism, whether his words were properly chosen and actually meant that, ok, i can see people arguing about it.

  2. Mark M April 4, 2012 at 1:34 pm | | Reply

    The real problem here is of Obama’s making. He foolishly publicly challenged the Supreme Court on a pending case, giving rise to the perception that having learned via leak of the Supreme Court’s preliminary vote on the health care mandate, he was compelled to play politics to dissuade the Court of its views. Publicly castigating the Court is a bad idea, made only worse when the statements are inaccurate. This applies irrespective of the party in power. There appears to be little discipline and no ability to defer gratification and stay the course on objectives.

    I am not sure I am in agreement with Orin Kerr’s statements that the Fifth Circuit’s demand to the DOJ hurts the judiciary. The downside here obtains to the administration, not the Fifth Circuit. After all, the President of the United States just questioned the right of judicial review which has been a fundamental premise of the federal courts since nearly the founding of the country. I see the Fifth Circuit’s demand as a very clever way of informing Obama to shut up and quit playing politics with the judiciary. Again, a very clever and painful punch in the nose.

    I am once again perplexed at the arrogance of the administration. Any decent Constitutional lawyer, even if he or she believed odds were in favor of the Court finding the individual mandate lawful, had to be able to identify the risk of its at the time the legislation passed. And given the mandate is the economic linchpin of the legislation and the scheme, didn’t anyone think that this could work out badly and fall apart? Yes, one could think that the Court would somehow find the mandate proper, but anyone outside the lefty political echo chamber had to identify it as a really material risk. Corporations which don’t listen to solid legal advice usually pay the consequences. So will this administration. And pinging on the judiciary publicly just seals their fate.

  3. momof4 April 5, 2012 at 12:12 pm | | Reply

    I don’t buy the assertion that President Obama is so brilliant and such a con law expert because he was editor of the Harvard Law Review and was a con law professor. I think it’s likely that AA reared its ugly head in both cases, which would explain his lack of scholarly work at both levels. Did he ever pass a bar exam?

  4. Mark M April 5, 2012 at 1:18 pm | | Reply

    As a former law review editor at one of these overpriced, highly ranked law schools, most of the people who make law review are indeed very bright (I counted myself as simply practical and focused, however). I was an editor in the days before this school had affirmative action for law review admission (it did have generous affirmative action for law school admission and the law review never had a single black member to date). While I can vouch that the law reviewers were very bright, it goes without saying that all were not effective doers or managers. And worse yet, being saturated in the legal world can easily make one overrate their own intelligence (think I could hold an intellectual candle next to John Rosenberg’s daughter, for example? I think, without any measure of self-deprecation, that answer would be “no”). Lawyers too often camp out in their narrow deductive world and convince themselves that they are truly intelligent. I suspect Obama has all of these flaws, without even knowing the advantages he may have obtained via affirmative action.

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