Many have commented on President Barack Obama’s remarks on the Supreme Court this week, when he stated “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,” referring to the passage of the unpopular ObamaCare, and the chance that in June, the Supreme Court will rule it unconstitutional.
The Wall Street Journal ’s editors took on the president’s claim that a negative Court ruling would be “unprecedented”:
Presidents are paid to be confident about their own laws, but what’s up with that “unprecedented”? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a “democratically elected” legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by “strong” majorities.
The so-called Affordable Care Act, moreover, was not passed with any kind of a strong majority. Democrats pushed it through the Senate on a purely partisan vote, attaining only a drop more than the 60 needed to prevent a filibuster. And in the House the vote was 219-212, despite a Democratic majority.
Now, Obama is too smart to not know about Marbury v Madison. As a graduate of Harvard Law School and later a “senior lecturer” at the University of Chicago, he obviously knew this case very well. Indeed, most students whose high schools still have history or civics have heard about it way before college.
So if we accept that the president was not ignorant of basic constitutional law and the concept of separation of powers, then we have to come up with other theories to try to explain why he made this statement.
The most obvious is that he was both trying to inflame his base before the election and to threaten the Supreme Court justices in advance, especially Judge Anthony Kennedy, the supposed swing vote who many think might side with the liberal justices. The president also said the following while making his remarks:
And I’d just remind conservative commentators that, for years, what we have 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.
There are two things wrong with the president’s statement, and it does not take a professor of constitutional law to spot them. First, judicial activism refers to justices making social policy via law, by using their power to mold the law into a mechanism for making policy, rather than leaving that task to Congress.
In judging Obama’s health care law, the justices were not even planning any such use of the law, but judging whether a bill passed by Congress was in fact something that exceeded the limits set by the Constitution. The president’s phrase that the justices were “an unelected group of people” makes it appear that he does not believe the Court has the right to exercise its authority in the very way the separation of powers demand. He phrased his sentence in such a way to imply that they would be doing something wrong to overturn a “duly constituted and passed law.” That view, of course, was trounced soon after the very founding of our country by Alexander Hamilton, who pointed out in 1788 that “no legislative act… contrary to the Constitution, can be valid.”
And this is why I believe the president had something else in mind. At the start of his term in office, his well-wishers, like the journalist Jonathan Alter, argued that Obama could be our equivalent of FDR and use the presidency to bring the welfare state of the 1930s to standards of our present day. Obama would use his powers to go way beyond the New Deal and successfully transform our country into a European-style social democracy.
As anyone who has looked at our history knows, the early linchpin of the first New Deal was FDR’s National Industrial Recovery Act, or the NRA, which referred to the government agency established to administer the program. The purpose of the Act was to cartelize American industry in the interest of the large corporations. Industries would create code agreements by which every industry would have to adopt the codes that industry-wide boards had established. Big Labor received its share through the announcement of codes that would establish maximum hours, minimum wages, and collective bargaining. Industries such as shipbuilding, woolens, electrical, and the garment industry all signed up with the government program. The NRA did not, historians agree, speed recovery, and probably made it harder to achieve by its restrictions on production and price fixing. In effect, it created a group of private economic governments, in which large corporations dominated code authorities and used their power to stifle competition. It was a vast government overreach and, as some on both the Right and Left argued at the time, was fascism American style.
On May 27, 1935, called Black Monday by New Dealers, the Supreme Court, in a unanimous 9-0 decision, struck down the NIRA. It was too sweeping a delegation of legislative power, and was, as Justice Benjamin Cardozo argued, “delegation running riot.” FDR was both dumbfounded at the decision and angry. The result, later, was his disastrous proposal to “pack the Court” by adding six more judges that he would appoint, thereby providing a guaranteed liberal majority that would not undo programs he wanted the nation to adopt. The move was disastrous, as Americans began to accuse Roosevelt of dictatorial ambitions.
By 1937, FDR had seen the Court declare unconstitutional his Agricultural Adjustment Administration, the AAA, as well as the NRA and a coal conservation act. But much to his pleasure, the Court later began to rule favorably on other pending New Deal programs, including the Wagner National Labor Relations Act, the unemployment provisions of the Social Security Act, and later, the old-age pensions feature of the Act. FDR had, it was said then, lost the fight with the Court but won the war for the rest of his desired legislation.
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.