Thursday, April 12, 2012


President Obama’s troubling remarks concerning the United States Supreme Court and the constitutionality of the Health-Care Law are now well known to us, and much has been written questioning the propriety of the President’s critical comments about the Court, which were made in the aftermath of the highly publicized oral arguments made to the Justices by the lawyers representing the government and the opponents of the Health-Care Law.

To be specific, the President said the following in his press conference on April 2, 2012:

"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."

The next day, the lead headline of The Wall Street Journal thundered: “Obama warns Supreme Court – Says Overturn of Health-Care Law would be ‘Unprecedented Extraordinary Step’.” All experts seemed to agree that the President’s statement was a “rare example” of a president, prior to the Court’s decision, admonishing the Court to use “judicial restraint” before overturning one of the key achievements of his administration.

Some described the President’s remarks as “bullying” or an attempt to “intimidate” the Court into ruling his way. Others saw nothing wrong with his remarks at all. It is important to remember that prior to President Obama’s April 2nd press conference, his relationship with the Supreme Court was already unusually tense and that he had a history of being publicly critical of Supreme Court decisions he did not like. In his 2010 State of the Union speech before Congress, President Obama publicly rebuked the Justices – who were sitting uncomfortably in the audience – for a ruling he said would allow foreign corporations to make campaign contributions in American elections. In another rare moment in American history, Justice Samuel Alito mouthed “not true” when Obama delivered his rebuke.

Jay Carney, the White House press secretary, and U. S. Attorney General Eric Holder later defended the President’s remarks by saying that he did not intend to imply that the nation’s highest court had no authority to overrule Obamacare and that the President understood that, by virtue of the 200-year-old landmark case of Marbury v. Madison, the Court has the authority to judicially review the constitutionality of Acts of Congress. However, Attorney General Holder also stated, in support of the President’s remarks, that the courts should act with restraint in doing so and that the existing health insurance requirements of Obamacare fall within Congress’ power to regulate interstate commerce.

So what are we, as American citizens, to make of this extraordinary chain of events, where a sitting President, our Commander in Chief, and the leader of the Executive Branch of our government, for the second time publicly calls out the Judicial branch of our government and publicly calls upon the Supreme Court to use “judicial restraint” before ruling against him in a landmark decision that could revolutionize the federal government’s intrusion and control over our lives.

Some say that the President’s willingness to take on the Supreme Court in an irreverent way by simply referring to the Justices as an “unelected group of people” shows leadership and his willingness to fight for those things in which he believes passionately. Others say that the President’s statements about the Supreme Court in his press conference, as well as in his State of the Union address, are very disturbing and dangerous, potentially breed anarchy, and show his basic disrespect for our American system of government. They say that such remarks show the tendencies of a potential dictator who is basically unwilling to accept the premise that our government is founded on a system of laws, not men.

It is noteworthy that President Obama is not the first American President to become frustrated with the Supreme Court, nor is he the first to resort to extraordinary means to attempt to influence its actions. In the 1920’s, American was still struggling to recover from the Great Depression, the nation’s economy was still very weak, bread lines were still evident in the nation’s largest cities, and agricultural workers were still suffering from the grapes of wrath. To attempt, in some way, to improve the nation’s economy, Congress passed some of the most far-reaching laws of President Roosevelt’s “New Deal for the American People”, which gave the President broad new powers to regulate trade and industry. Many of these laws were ruled unconstitutional by the Supreme Court.

According to the eminent historian, Samuel Eliot Morrison, writing in his The Oxford History of the American People,

"In May, 1935 the Supreme Court, in the Schechter poultry case, destroyed the National Industrial Recovery Act in a unanimous and sweeping decision. Congress, said the Court, cannot delegate unfettered power to the President to issue whatever edicts he thinks advisable for the good of trade or industry. The NRA constituted an improper exercise of the Commerce Power, for if the commerce clause were so construed, “the federal authority would embrace practically all the activities of the people and the authority of the state over its domestic concerns would exist only by sufferance.”

President Roosevelt was upset by the Court’s ruling, which struck down what he had described as “the most important and far-reaching ever enacted by the American Congress.” Then, according to Professor Morrison, Roosevelt made “his first big mistake.”

"F.D.R., feeling that the country could not afford to wait for the six septuagenarians on the Court to make their last decisions, in February, 1937 made the startling suggestion to Congress that it authorize him to appoint one new Justice for every one over seventy years of age who had not retired."

The public’s renunciation of Roosevelt’s radical “court-packing plan” was immediate and came from every quarter. While the “public may have been irritated by the obstructionism of the Supreme Court, . . . it did not wish that revered institution to be tampered with.” Congress refused to pass Roosevelt’s proposal.

Put in proper context, it is obvious that President Obama and his followers, like Roosevelt and his New Dealers, believe that our Supreme Court often seems to find ways to. . . “favor private economic power and always to find ways of circumventing the efforts of popular government to control or regulate it.” (See Schlesinger’s The Politics of Upheaval).

My thoughts? I am grateful that the founders who wrote our Constitution put in place a system of checks and balances which prevents one branch of government from gaining too much power.

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