There is little question last week’s Supreme Court arguments over the Patient Protection and Affordable Care Act did not go as President Barack Obama had hoped. Five members of the Supreme Court, including Justice Anthony Kennedy — seen as a likely “swing vote” in the case — seemed skeptical of allowing the president’s signature legislation to provide the vehicle for the federal government to regulate virtually every aspect of citizens’ lives.
The likelihood that a majority of the court’s nine members will present Obama with a major, election-year defeat seems to have pushed him to troubling — approaching bizarre — behavior.
Rather than simply waiting for the high court to render its decision later this spring and reacting to it, the president has launched into a public attack on the justices. Obama’s actions would be unusual in any circumstances, but they are particularly troubling considering he is a former constitutional law professor who was supposedly schooled in understanding such basic concepts as judicial independence and the separation of powers.
For example, during a press conference on Monday with Mexican President Felipe Calderon, Obama proclaimed that by striking down the health care law, the Supreme Court would be taking an “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” He also advanced an argument often made by conservatives: that by not exercising “restraint,” the court would be guilty of “judicial activism.”
Such assertions are, of course, absurd. The Supreme Court has been overturning laws that conflict with the Constitution since 1803, when then-Chief Justice John Marshall wrote the seminal opinion in Marbury v. Madison. This is Constitutional Law 101.
Moreover, for the Supreme Court to overturn a law — even one a president likes — that conflicts with the Constitution is hardly “unprecedented.” Since 1803, the Supreme Court has struck down 165 laws passed by Congress. Between 1981 and 2005, it struck down 53.
The president’s pronouncements are nothing but demagoguery; but it is not the first time he has disingenuously lashed out at the Supreme Court. During his State of the Union address in 2010 — as several Supreme Court justices sat respectfully in the audience directly in front of him — he brazenly mischaracterized the then-just-issued high court decision in Citizens United v. FEC. That opinion had simply loosened some of the provisions of federal campaign finance law that clearly had undercut First Amendment freedoms. Yet Obama claimed — falsely — that the decision would “open the floodgates [for] foreign corporations to spend without limit in our elections.”
Obama continues to pretend that the rules and the system of checks and balances put in place by our Founding Fathers do not apply to him. However, as a “constitutional scholar,” he should know history has shown Supreme Court justices rarely respond well to intimidation, even if delivered by a petulant president.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.