What Barack Obama attempts to do now is again use the FDR playbook. Rather than wait for the Court to declare ObamaCare or the mandate unconstitutional, he is preferring to threaten the justices in advance and create a groundswell of public opinion that will see the Supreme Court the way FDR saw them: as “nine old men” who stood in the way of the people’s power. He is hoping that even though they are not supposed to pay attention to political currents and debates swirling around them when making decisions, they will in fact pay close attention to the demands of left-wing activists and, fearing alienating the public from any respect for the Court, bend to the president’s will.
The problem is that when FDR made policy, his bills passed with both bipartisan support and with majorities in both houses of Congress. Today, Obama maintains only partisan support and polls show the single most important program of his first term, ObamaCare, is more unpopular than it ever was. So even if the justices pay attention to public opinion, they know that the president skates on thin ice. As some older folks might say, “I’ve seen FDR, Mr. President, and you’re no FDR.”
What Obama’s arrogant statement reflects, moreover, is his probable desire to pass laws by executive fiat, without even having to go to Congress. We should recall the recommendations made by think tanks such as the Center for American Progress and the Institute for Policy Studies. Both issued position papers arguing that Obama could enact many new programs by the power inherent in the presidency without even turning to Congress.
If there is a threat to our commonwealth then it comes not from the Supreme Court but from the executive branch itself, which the president more and more implies should be the sole repository for doing what he thinks the people want. Why let Congress be brought into it and why have to bear the burden of a Court which might decide a program is unconstitutional?
An aroused citizenry, I think, should be more than concerned with the tone of the president’s remarks. They reflect a disdain for our constitutional system and a hostility to the separation of powers, as well as to the justices appointed to do the job of seeing that constitutional standards are upheld. We avoid this concern at our own peril.