Obama Arrogance... Part 2

by: Les Carpenter
Rational Nation USA
Liberty -vs- Tyranny

Earlier this week President Obama caused a bit of a outrage over his remarks with respect to his signature piece of legislation, the ACA, or ObamaCare. As the Supreme Court concluded oral arguments on the constitutionality, or lack thereof the President felt the need to weigh in politically on the subject. This is what he said.

CBS NEWS - "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." — At a news conference Monday with Mexican President Felipe Calderon and Canadian Prime Minister Stephen Harper.

Reading the Presidents statement two things stand out. First the congress did not pass the ACA with a strong majority. The legislation passed by a margin of 7 votes, 219 - 212 with 34 democrats voting against the legislation. Secondly to say that a Supreme Court Decision to strike the law would be unprecedented is simply untrue. The court has a history of striking laws it deems to fail constitutional muster. So, if the court strikes ACA it certainly will not be the first time this has happened in the Courts history.

The above considerations aside it is reasonable to most individuals to think the President came across as a bit arrogant as well as disrespectful of the Court with his reference remark "...that an unelected group of people would somehow overturn a duly constituted and passed law."

Given the above it is to the Presidents credit he came back with comment explaining his earlier remarks.

"Well, first of all, let me be very specific. We have not seen a court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre-New Deal. And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this. Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has. As a consequence, we're not spending a whole bunch of time planning for contingencies." — In response to a question Tuesday at the annual meeting of The Associated Press.

Given the Presidents clarification it is now reasonable to believe he both understands and respects the role of the SCOTUS.

Attorney General Eric Holder, in his response to 5th Circuit Court of Appeals Justice Smith's letter, left no doubt.

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation...

The power of the courts to review the constitutionality of legislation is beyond dispute...

The President’s remarks were fully consistent with the principles described herein.

Full text of the Attorney General's letter here.

While a majority of the people are opposed to the ACA {ObamaCare} it is the job of the Court to determine the constitutionality of the law regardless of public opinion or their own personal views. All Americans should be hopeful the Supreme Court Justices look beyond any partisan beliefs they may have (both the liberals as well as the conservatives on the court) and impartially determine the issue of the laws constitutionality.

The concept of judicial activism is an issue all Americans should understand and be concerned with as judicial activism in extreme form can well become a form of judicial tyranny. What we all should want is judicial restraint whereby the courts use not only impartiality in their decisions affecting us but use restraint in striking laws that are passed by the duly elected people who are to represent us.

Given the uproar over the Presidents remarks this week, and the discussions that followed I leave the following for your consideration. They can be helpful in putting the issues of this past week in perspective methinks.

Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint.

Critics of judicial activism assert that it subverts the separation of powers principle founded by the framers of the U.S. Constitution. Judges frequently must interpret what the law actually says, but they are often accused of "judicial activism" if their interpretation seems be a rewriting of the law, especially if their rulings strike down or substantially revise laws passed by actual lawmakers.{USLegal}

Judicial restraint refers to the doctrine that judges' own philosophies or policy preferences should not be injected into the law and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state legislatures. This view is based on the concept that judges have no popular mandate to act as policy makers and should defer to the decisions of the elected "political" branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states. {USLeagal}

Judicial restraint is a legal term that describes a type of judicial interpretation that emphasizes the limited nature of the court's power. Judicial restraint asks judges to base their judicial decisions solely on the concept of stare decisis, which refers to an obligation of the court to honor previous decisions.

Conservative judges often employ judicial restraint when deciding cases, unless the law is clearly unconstitutional. Judicial restraint is the opposite of judicial activism, in that it seeks to limit the power of judges to create new laws or policy. In most cases, the judicially restrained judge will decide a cases in such a way as to uphold the law established by Congress. Jurists who practice judicial restraint show a solemn respect for the separation of governmental problems. {US Conservative Politics}

Via: Memeorandum