Wednesday, April 04, 2012

Fidel Obama

According to our exalted leader:

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.

Several issues:

i) If SCOTUS strikes down the law, I’ll be pleased with the result, but not with the process.

ii) It squeaked through the House by 5-vote margin. That’s hardly a “strong majority.”

iii) In one sense, I agree with Obama–although he only half believes what he’s saying. I’m not convinced that SCOTUS has the Constitutional authority to strike down acts of Congress.

iv) However, judicial review is essential to liberal strategy and tactics. Because so many liberal policies lack popular support, liberals game the court system to impose what they can’t achieve through the democratic process. Obama certainly has no objection to judicial review whenever that advances the liberal agenda.

v) But is this a tu quoque argument? Is he accusing conservatives of hypocrisy? I myself think it should be up to Congress to repeal bad acts of Congress.

vi) That said, many conservatives support judicial review in principle. They don’t object to the Federal judicial striking down acts of Congress that are truly unconstitutional. Rather, when they decry judicial activism, they are referring to Federal judges (or Supreme Court justices) who disregard the text as well as the original intent of the Constitutional framers.

vii) Moreover, as long as judicial review is the de facto (if not the de jure) system, then conservatives aren’t going to unilaterally disarm. The consistent conservative position isn’t that Federal courts have the right to strike down conservative laws while lacking the right to strike down liberal laws.

viii) But in another sense, Obama is sincere. For he’s quite the autocrat. He governs by executive fiat. He flouts laws that don’t meet with his approval. So, no doubt he takes personal affront at the specter of SCOTUS clipping his wings.

ix) There’s also the question of whether his statement will backfire. What if a swing voter on the bench was inclined to uphold Obamacare, but now that he’s recast the issue in terms of judicial authority, the swing voter is now inclined to strike down Obamacare just to show him that SCOTUS can’t be intimidated.   

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