Yesterday, we discussed President Obama’s comments on the Supreme Court and the pending health care litigation — comments I viewed as unwise and unfounded. In addition to wrongly suggesting that any justice voting against the law would be a judicial activist, Obama seemed to suggest that the law should be upheld on the ground that it is the result of a democratic process and the will of the majority. Putting aside the fact that all unconstitutional law were passed by a democratic process in this country, I noted that the comments were extremely unwise at a time when the Court appears split on the key issues and currently deliberating the outcome. Well, the Supreme Court is not the only court considering the health care law and the timing could not have been worse for Obama to hold forth on his view of the courts and the Constitution. While I do not agree with the order of the Fifth Circuit for the Administration to respond in writing to the court, some backlash should have been foreseen by the President in going public with the comments.

Obama stated that:

“Ultimately, I am 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 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. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”

The judges on the Fifth Circuit did not take kindly to the suggestion that either they would be judicial activists to rule against the Administration or that somehow they lack authority to strike down the law.

Judge Terry Smith referred “to statements by the president in the past few days to the effect … that it is somehow inappropriate for what he termed unelected judges to strike acts of Congress.” He noted “[t]hat has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority. And that’s not a small matter.” He then asked: “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”

Justice Department attorney Dana Lydia Kaersvang answered “yes” to the court has such authority but the panel was not satisfied. In a rare move, the panel ordered the department within 48 hours and specified that

“That letter needs to be at least three pages single-spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and the again to the position of the attorney general and the Department of Justice,”

I am not sure about the required length or the real need for letter given the statement of government counsel, but the order reflects the dangers of public comments by parties. As the head of the Executive branch, presidents are routinely warned not to make comments on pending cases. Obama’s comments in my view were well outside of the lines and, while perhaps playing well politically, can only undermine the Administration’s case legally. Having said that, I do not believe that the letter is needed or appropriate in this circumstance (particularly the insistence on referencing the President’s comment which seems to set up an embarrassing filing for the Administration).

The White House appears to be backpedaling. White House Press Secretary Jay Carney issued a statement assuring jurists and citizens that “we believe that the Supreme Court has, and the courts have, as their duty and responsibility the ability of striking down laws as unconstitutional.” The White House insisted the president was referring to the weight of precedent in the case not any barrier to the authority of the Court. Notably, it did not retract the statement that any jurist voting against it would be a judicial activist.

Obama himself tried to walk back from the earlier comments:

“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.”

That would have been a far better statement to make earlier, but it is not the statement that was made. It may be too much to expect for the President to admit that his comments were ill-advised and ill-conceived. However, it would have been a redeeming moment for the President to say that he simply made a misjudgment and should not labeled opposing views as motivate by judicial activism. He could have said that reasonable people can disagree but that he believes the cases and underlying constitutional provisions favor upholding the law. As I have said, I do not believe that this fight had to occur and that the law was a poor drafting and poor planning. Congress could have made the individual insurance mandate a state option: telling states that if they did not require such coverage, they could not receive some federal funds to adjust the costs externalized to other states. Moreover, with a majority of states in court opposing the law and roughly half of the public opposed to the law, it is hard to gauge the democratic will of the people on the issue. Of course, Obama is right that the law was passed by a democratic process. However, I thought it was a mistake at the time to push through a bill on the thinnest of margins. Franklin Delano Roosevelt famously insisted that he would not ask for a declaration of war in World War II until he could secure the vote by an overwhelming margin. He understood that wars — like major legislative programs — tend to become less popular with time. The Administration not only muscled through a poorly written law but did so with roughly half of Congress opposed. I support national health care but this was not the way to do it.

If the President believes he was misunderstood, it is a misunderstanding shared not only by judges but also legal commentators. It was an ironic moment: a president objecting to the politicalization of a case by using the case as a rallying point in his political campaign. It is a moment out of Richard III:

“Think that thy babes were sweeter than they were,
And he that slew them fouler than he is.”

It is not enough to rally voters over an alternative view of federalism. That simply does not resonate as much as demonizing those who would adopt an alternative view as judicial activists.

Here is the transcript from the hearing in pertinent part:

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

Source: Wall Street Journal