Obama's selective Supreme Court memory





“Ultimately, 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. 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.”

-- President Obama, discussing the pending U.S. Supreme Court decision over his health care law, April 2, 2012

...It’s clear that Obama’s “unprecedented” comment was dead wrong, because the Supreme Court’s very purpose is to review laws that are passed by the nation’s democratically elected Congress — regardless of how popular or well-intentioned those laws may be. This concept of judicial review was established in 1803 with Marbury v. Madison, a case that Obama should have been familiar with as a former law school lecturer and previous president of Harvard Law Review.

Still, we don’t know whether the president’s factual error was a mere slip-up or a purposeful attempt to mislead, and we generally don’t beat people over the head for off-the-cuff remarks. Let’s take a look at the president’s message in light of his clarifying remarks to see whether it holds up any better under scrutiny....

First, Congress didn’t pass the Affordable Care Act with a strong majority. The vote in the House of Representatives, for instance, was 219 to 212, with no Republicans supporting and 34 Democrats opposing the measure.

Second, Obama issued his first set of remarks during a news conference in which he wasn’t specifically asked for his thoughts on how the Supreme Court should rule. A reporter simply inquired about how the president would proceed if the health-care law is overturned. The question was: “How would you still guarantee health care to the uninsured and those Americans who’ve become insured as a result of the law?”

Instead of answering that hypothetical, Obama offered his version of legal history and explained why the statute should be upheld. Critics say he was essentially lecturing the justices.

That said, the Supreme Court hasn’t overturned a sweeping law in quite some time. By “sweeping,” we mean statutes that apply to virtually all citizens, as the Affordable Care Act does....



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