Eric Holder Backs Professor-in-Chief’s SCOTUS Smack Down
President Obama has been weighing in on everything from Treyvon Martin to the Masters golf tournament, so it should be no surprise to anyone he feels perfectly comfortable admonishing – however subtly – an equal, albeit “unelected”, branch of government. Obama’s recent statements on Monday while discussing the Supreme Court’s review of his signature legislation, the 2700 page mammoth known as the Affordable Care Act a.k.a. Obama Care, have caused an uproar. Recent responses to legal arguments by the majority of justices have not been favorable to the president and if sentiment continues it puts Obama Care at risk of being thrown out in its entirety.
“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,” Obama said. “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. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”
The “strong majority” garbage we can toss out of hand. All too often politicians prey upon the short attention span of the American public, but more than a few remember the Obama Care fight came down to a few votes. The deeply unpopular legislation barely got through a strong Democrat Senate with the minimum number of votes needed to survive a filibuster and squeaked by in the House, 219-212. Souring public opinion further was the out in the open sausage making made famous by the “Cornhusker Kickback”, which arguably lead to Nebraska Sen. Ben Nelson’s (D) retirement, and the 2nd “Louisiana Purchase” aimed at holdout Sen. Mary Landrieu (D).
This isn’t the first time Barack Obama has publicly chastised the Supreme Court. At the State of the Union two years ago President Obama chided the Justices for their Citizens United decision, which supported the right of corporations to “spend without limit” according to the president. His statement is not without a sense of irony considering it came from a candidate who has since boasted of a potential billion-dollar campaign war chest.
According to Bradley A. Smith, chairman of the Center for Competitive Politics, Obama’s State of the Union comment was a “breach of decorum” and “representing the worst of Washington politics – scapegoating ‘special interest’ bogeymen for all that ails” us. Contrary to what Mr. Smith may think Obama’s public smack downs are frankly immaterial. What is of great importance is that Obama and many others reserve a special disdain for one of the last vestiges of our original republican design, that is to say, the utilization of non-democratic institutions (not to be confused with bureaucratic agencies). Obama’s recent statements provide a rich sample of this reasoning.
The idea that the Supreme Court wouldn’t overturn democratic legislation – you know a big part of their job – is wishful thinking at best. “Saying that it would be ‘unprecedented’ and ‘extraordinary’ for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas,” writes a Thom Lambert, a former law student of Obama. “Thus, a Wall Street Journal editorial queried this about the President who ‘famously taught constitutional law at the University of Chicago’: ‘[D]id he somehow not teach the historic case of Marbury v. Madison?’” Evidently, “no” says Lambert. Con III, Obama’s class, dealt primarily with the 14th Amendment.
Attorney General Eric Holder backed the president’s remarks in a three-page letter to concerned judges in the 5th Circuit Court of Appeals wherein he characterized laws passed by Congress as “presumptively constitutional.” While Holder admits “the power of the courts to review the constitutionality of legislation is beyond dispute” he also holds that power should only be exercised in “appropriate cases.” The last 235 years of jurisprudence would suggest selecting “appropriate cases” to exercise that power is the prerogative of the Supreme Court. Whether Eric Holder gets that impression is debatable. Holder also parroted a classic misconstruction citing the infamous Interstate Commerce Clause, what progressives and “conservatives” like to think of as the Founder’s constitutional blank check to regulate anything and everything and a concept on which all 2700 pages of Obama Care rest.
The “principles of deference are fully applicable when Congress legislates in the commercial sphere” writes Holder and these sentiments don’t stop with leading democrats. Before arguments over Obama Care were even heard “conservative” appointees were lining up to justify the legislation on similar grounds. While favored talking points of rank and file Republicans criticize Obama Care for taking over much of the economy they may have inadvertently provided their opposition with potentially lethal ammunition.
“The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy lift” says U.S. Appeals Court Judge J. Harvie Wilkinson, a Reagan appointee. Wilkinson (ostensibly conservative) surprisingly claims it is not traditional conservatives “who want to use [the Constitution] to limit the scope and size of federal government.” He believes they’d prefer leaving “these epic battles to the political branches to fight out.” Evidently, using the Constitution to constrain the “scope and size of federal government” is something new and something, which has been causing “real tension in conservative ranks” according to Wilkinson. Ron Paul, infiltrating libertarians and staunch constitutionalists would certainly argue it is these conservatives who refuse to invoke constitutional restrictions and justify legislation on constitutional grounds who are the new kids on the block especially with regard to the Commerce Clause.
Third among the eighteen clauses of Article I, section 8, the Commerce Clause states that Congress has the power “To regulate Commerce with foreign Nations, and among the several states, and with Indian tribes.” It has since rarely referred to anything, but the “several states” and is therefore known as the Interstate Commerce Clause. What had originally in 1787 been designed as a modest power essentially buried in Article I and circumscribed by a Senate beholden to state legislators (a non-democratic body referred to earlier, eviscerated by the 17th Amendment), the 10th Amendment and a independent judiciary has since metastasized into a source for all encompassing regulatory power.
At the Constitutional Convention of 1787, according to Justice William Johnson, “If there was any one object riding over every other in the adoption of the Constitution it was to keep the commercial intercourse among the States free from all invidious and partial restraints.” In their book the Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, Robert A. Levy and William Mellor cite more constraints than those mentioned above.
“Although it served a narrow purpose, the [Commerce Clause] was cautiously crafted with two significant limitations. First, it was limited to the regulation of ‘commerce,’ which at the time of the founding referred to the trade of goods rather than their production or manufacturing. Second, the Clause applied to commerce occurring ‘among the several States’; regulation of purely intrastate trade was left to the states themselves.”
Before even 1937 most laws dealt with actions by “states that had impermissibly frustrated interstate commerce” write Levy and Mellor. After the decision in National Labor Relations Board v. Jones & Laughlin Steel Corp. all that changed and the Clause would henceforth “encompass those things having a substantial effect on trade, such as agriculture, manufacturing and production intended for interstate sale.” The expansion and role of government during the Great Depression was so pervasive when Wickard v. Filburn was heard the Supreme Court doubled down and ruled the Interstate Commerce Clause to authorize the Congress to regulate “even local production of goods – even if not intended for interstate commerce – that in the aggregate they might have a ‘substantial effect’ on interstate trade.”
This is what the Obama administration is arguing today. That the aggregate decisions of citizens over what to consume, how to treat their bodies, how to treat their patients and the myriad of costs of delivering medical services and products affects the insurance market, even those who choose not to interface with the medical establishment are culpable for the costs! It is on these grounds, the administration argues, that it is justified to regulate health care and to force everyone, under threat of tax penalty, to purchase a product. Under this justification of aggregate affect is there not anything under the sun the federal government cannot regulate? What about butterflies?