Supreme Court

Obama's Bogus Complaint About Health Care and Judicial Activism

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James Madison once described the judicial branch of our government as "an impenetrable bulwark against every assumption of power in the legislative or executive." The idea is that the courts are uniquely situated to protect both individual liberties and unpopular minorities against the tyranny of the majority. Judges do this (if they do it) by striking down democratically-enacted laws.

President Barack Obama apparently has a different opinion about what the courts should do. Here's what he said yesterday, in response to a question about last week's oral arguments on the constitutionality of the Patient Protection and Affordable Care Act and its controversial individual mandate:

Ultimately I'm confident 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 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. An unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident this court will recognize that and not take that step.

Is it really so unprecedented for the Supreme Court to overturn a law passed by a democratically-elected group of lawmakers? In the 2005 case of Boumediene v. Bush, the Supreme Court struck down part of the Military Commissions Act of 2006 in order to recognize habeus corpus rights for prisoners held as enemy combatants at Guantanamo Bay—a decision cheered by then-Sen. Obama himself. Among the justices who signed on to that opinion was Stephen Breyer, who had this to say about the ruling in his recent book Making Our Democracy Work: "One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress's broader purposes."

No, one cannot characterize Boumediene as an example of judicial deference. But so what? Sometimes Congress' broader purposes run counter to the text and history of the Constitution, and in those cases, it's the responsibility of the courts to say so and strike the law down.

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  1. In the 2005 case of Boumediene v. Bush, the Supreme Court struck down part of the Military Commissions Act of 2006 in order to recognize habeus corpus rights for prisoners held as enemy combatants at Guantanamo Bay?a decision cheered by then-Sen. Obama himself.

    That’s different, because it’s what he wanted. As long as the court does what Obama wants, it’s behaving appropriately.

  2. Hey, it ate my comment!

    Do over:

    In the 2005 case of Boumediene v. Bush, the Supreme Court struck down part of the Military Commissions Act of 2006 in order to recognize habeus corpus rights for prisoners held as enemy combatants at Guantanamo Bay?a decision cheered by then-Sen. Obama himself.

    That was different. As long as Obama likes something, it’s appropriate judicial behavior.

      1. Three comments and they’re all you! You’re on a roll, Joe.

  3. What I take from this is that the administration must not have a good feeling about the Court’s decision if Obama is already running spin to make a defeat sound better. Hopefully, they are right to be worried.

    1. I wonder if there wasn’t a leak. The SCOTUS clerks are from a hardcore Obama demo, after all.

  4. And I 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.

    He must think the “conservative” justices on the Supreme Court are as dumb as the general public since he usually only uses those “most people say” and “person x is in group a and person y is in group a, so person y agrees with everything person x says” statements on us.

  5. What a nasty little piece Obama is – the word “gracious” has never entered his vocabulary.

    The best thing to say would be: “I hope the Supreme Court comes to the right decision”… and leave it at that.

  6. What is this “separation of powers” I hear you speak of? And this other topic, “limiting principle”, what is this mysterious concept?

    MAJORITARIANISM. Fuck you, that’s why.

  7. judicial activism, n. phr. any judicial decision that I don’t like

  8. Can we expect the MSM to ask the president if he will only appoint judges who do not believe in judicial review but are there only to rubber stamp the actions of the other two branches? Nah. There are never consequences for the things that come out of his mouth.

  9. “And I 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.”

    There’s a huge difference between complaining about legislating from the bench and SCOTUS striking down unconstitutional legislation.

    1. Exactly. This president is a real prize.

  10. Obviously, the court should just rubber stamp whatever Congress does.

  11. so, the constitutional law professor remains as unclear as ever on the Constitution. I am shocked I tell you.

    1. This is 1L Con Law stuff. He’s just an incredible hack.

      1. This was grade school civics stuff just a few years ago.

    2. I think they should ask for their diploma back.

  12. Does this guy completely lack impulse control? Okay, it went badly for him last week. Maybe he even knows what the vote was on Friday. The answer to that is to have a long range plan in response. It does not good to run out the week after the argument, before the decision is even known, and launch some crude attack on the court.

    He really is just an overgrown child.

    1. I have been watching this fucker since he got voted as the most extreme member of the senate and you are right, impulse control is the problem. His entire political career is one head-smacker after another.

      “….under my plan energy prices will necessarily skyrocket….” = “I am going to fuck you and fuck you good. Vote for me!”

      1. Democracy is the theory that the common people know what they want, and deserve to get it good and hard.

        – HL Mencken

    2. But Steve Chapman told us yesterday about Obama’s “cautious temperament.”

  13. Sometimes Congress’ broader purposes run counter to the text and history of the Constitution, and in those cases, it’s the responsibility of the courts to say so and strike the law down.

    Sometimes the court does this as well. Who strikes that down? You have to wait 40+ years for a future court to strike it down.

    1. Quis custodiet ipsos custodes?

    2. If it’s that serious, utilize the amendment process.

  14. An unelected group of people would somehow overturn a duly constituted and passed law.

    If it is unconstitutional, it isnt duly constituted, you fuckwit.

    1. “…an unelected group of people would somehow… ”

      somehow – (adv) In a way not specified, understood, or known.

      robc I think you have discovered the correct spelling for ‘constitutional scholar’ – Fuckwit.

  15. Never fear, Obama will throw a speech at it and make it all good! Its what he does best.

    http://www.Surf-Tools.tk

  16. Ultimately I’m confident 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.

    The follow up question should have been, “…uh, Mr President? If the job of the Supreme Court isn’t to strike down unconstitutional laws passed by a democratically elected Congress, then what @#$% is the Supreme Court for?”

    1. I’m confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law.

      Oh, and “unprecedented”?

      Unprecedented?!

      What’s…um…precedented about siccing the IRS on lower middle class working people because they couldn’t afford to buy health insurance?

      Obama joins the Republicans in criticizing judicial activism–even while criticizing them for it–and at the same time, he manages to offer an argument against the individual mandate–it’s unprecedented–while criticizing the Supreme Court for doing its job–because that’s supposedly “unprecedented”?!

      That’s like a difficulty 10 double back flip off the high dive, Mr. President! Well done.

    2. Also, “strong majority” seems a stretch.

      1. Considering that on 20 Jan 2011 the House of Representatives voted 245-189 to repeal PPACA in its entirety, Obama’s assertion that its passage on 21 Mar 2010 was only 219-212 is a “strong majority” is simply absurd. Especially since that result was achieved only with Cornhusker kickbacks, Louisiana purchases, phony sophist fig leaves to cover religious objections, not to mention the ordinary corruption of economic rents to hospitals, doctors, big pharma, and insurers.

        Maybe Obama thinks the 416-0 House vote that’s indicated on the PPACA page in Wikipedia is really relevant to the case at hand.

      2. I think he meant strong-armed majority.

  17. Obama has to know this is complete garbage as far as constitutional law goes. He’s just trying to gin up the outrage for November.

    1. I don’t know this for sure, but my guess is that the Supreme Court is probably the most popular branch of government.

      And they’re not up for reelection this year.

      1. That’s kinda like being “the most popular proctologist”, isn’t it?

        1. Exactly.

          But when I see this president go after the most popular proctologist, I’m rooting for the proctologist.

        2. I don’t understand the hostility towards proctologists. A colonoscopy may not be pleasant, but it beats the hell out of colon cancer.

          1. I’ve never had colon cancer, so I can’t argue definitively, but I have had a colonoscopy and THEY FUCKING SUCK. So fuck you.

            Actually, the procedure isn’t that bad (because these days they knock you the fuck out while they give you the roto-router job); it’s the day before of shitting your asshole out and wiping yourself raw that really sucks.

  18. Oh, and the ad up at the top of the page, here, with Michelle Obama telling me to make a donation to the Obama/Biden campaign–letting them know “I’m in!”? …that’s probably an upgrade from the ads we used to see for Hollywood Liz Warren, the limousine Liberal.

    But still!

    I know Reason probably doesn’t have a lot of control over what the ads say, and if Reason is getting any money out of the Obama campaign for serving these ads, then that’s the best use of that Obama campaign money I can imagine.

    Still, I wish the people who are paying for and targeting these ads at us knew enough about libertarians to know that your average libertarian probably isn’t a likely candidate to cough up a contribution to the reelect Obama campaign.

    I’m just sayin’.

    1. The ads on mine seem to think I have multiple sclerosis; they are for potassium channel blockers.

      1. The ads on mine show me to be a fucking genius, because I DON’T HAVE ANY FUCKING ADS.

        AdBlock FTW!

  19. The Supreme Court’s duty is to judge the constitutionality of laws. There is nothing activist about performing this duty. The only reason the term judicial activism is popular is because it’s a good scapegoat.

    1. No, that is not the reason. Special ed democrats think they appear exceptionally clever turning the argument around on republicans in a most superficial and mind numbing manner. Judicial activism actually means something when it concerns finding a right to abortion protected at the federal level that is no where near the document, but it doesn’t mean anything when describing the recognition of limitations on the power of congress to regulate noncommerce under the commerce clause, or when rejecting the necessary and proper clause as a primary argument. In the later, they are not actually adding to the document, but enforcing what is actually there.

      1. Judicial activism actually means something when it concerns finding a right to abortion protected at the federal level that is no where near the document, but it doesn’t mean anything when describing the recognition of limitations on the power of congress to regulate noncommerce under the commerce clause, or when rejecting the necessary and proper clause as a primary argument.

        THIS.

        Activism is making shit up to try and add positive rights. They aren’t doing that. Not even close.

        What Obama wants to do is to make it seem like he hasn’t been able to fix things because everyone is against him, Congress, SCOTUS, and everyone else, so that he can say that he hasn’t been allowed to do his job and that he needs more time.

        Of course that avoids the FACT that he was able to push Obamacare sans any Republicans, and had a philibuster-proof Congress for 2 years.

  20. Ultimately I’m confident 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.

    Yes. Passing the law without a single Republican vote in either house DEFINITELY constitutes a “strong majority.” They had to borrow, beg, and steal to get the votes from people in their own party, and he wants to act like this piece of shit bill was passed unanimously by both parties in both houses.

    Fuck Obama with a broadhead.

    The only people he’s going to agitate with this bullshit are his base of Team BLUE supporters. Independents and others of us who fucking hate Obamacare aren’t going to be impressed by his sore losermanship and stomping around like a baby come election time.

  21. It’s a shame the populace is so fucking stupid because O’butthead has talked himself out of the Presidency about 100 times in 3.5 years.

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