A Supreme Overreach
by J. T. Young
Obama caught himself overreaching in warning the Supreme Court on his
healthcare overhaul. By preemptively declaring the law
“constitutional,” which is precisely what the Court will spend the next
three months deciding, he has raised the specter that any other verdict
would be the reverse. In so doing, he has created a public
relations problem that will translate into a political one, if he is
not extremely careful.
On April 2, Obama sought to compensate for what many have called a
lackluster Administration defense before the Supreme Court of the
President’s healthcare overhaul. He overcompensated. His
assertion that he is “confident that the Supreme Court will uphold the
law” was benign enough – what else was he to say? Anything less
would be to throw in the towel right there. The problem is that
he didn’t stop there.
His further assertion “it’s constitutional” took him down a slippery
slope on which he continued to slip. “That’s not just my opinion,
by the way, that’s the opinion of legal experts across the ideological
spectrum…” Still he continued: should the Court do otherwise it
would mean “an unelected group of people would somehow overturn a duly
constituted and passed law” and that such a step “would be an
unprecedented, extraordinary step…”
Obviously, the Supreme Court has some “legal experts” of their own and
ruling on “passed laws” are precisely what they are paid to do –
including overturning them, which the Court in its long history has had
no compunction against doing.
Obama caught his own overreach and sought to backtrack a day later:
“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.”
The President apparently wishes he had “exercised significant restraint
and deference” himself. The reason is that he has created for
himself a serious twofold problem.
His problem is first governmental. Writing in the Federalist
Paper #47, Madison underscored that one of the Constitutions founding
tenets is “the political maxim that the legislative, executive, and
judiciary departments ought to be separate and distinct… No political
truth is certainly of greater intrinsic value…The accumulation of all
powers, legislative, executive, and judiciary, in the same hands,
whether of one, a few, or many…may justly be pronounced the very
definition of tyranny.”
What Madison is inherently saying is that Obama is objecting to what
the Constitution was precisely meant to do. It was meant to have
the branches check each other and they were because the framers
correctly deemed this to be fundamental to proper government. As
head of the branch entrusted to execute government’s actions, that’s a
dangerous disconnect indeed.
Americans inherently feel this and they have felt it before. The
most prominent example being FDR’s attempt to “pack the Court” in the
beginning of his second term. While at his political apogee, he
still found much of his political agenda grounded. In a March 9,
1937, “fireside chat,” Roosevelt attacked the Supreme Court for
“reading into the Constitution words and implications which are not
there, and were never intended to be there.” His solution was
legislation to allow additional justices to be appointed – the effect
of which would be to create a majority favorable to his policies.
FDR’s overreach was much more aggressive and the negative public
reaction broader, but it was not distinctly different than what Obama
has encountered. And gauging the Administration’s reaction, they
know it. A swipe at the Supreme Court is seen as a swipe at the
Constitution itself. Nothing alienates Americans more.
It also alienates voters. FDR’s overreach did not cost him
reelection. Of course, FDR could more afford a negative reaction
– he had won in 1936 with 62% of the vote and didn’t make his attempt
his Court makeover in an election year. Obama won in 2008 with
53% and his challenge to the Court comes during a grueling
reelection. The consequences of voter alienation could be far
more tangible than the alienation itself.
And it could be even more consequential for Obama. While liberals
(who ironically have benefitted more from the Supreme Court “activism”
Obama decried than any group over the last few decades) may be cheered
by Obama’s free legal advice, the rest of the political spectrum is not
likely to be.
That’s a big potential political problem because liberals made up just
22% of the electorate in 2008. That compares to 44% for moderates
and 34% for conservatives. If Obama’s key to reelection is to
retain his appeal to the center from four years ago, attacking the
Supreme Court is decidedly not the way to do it. No wonder the
Administration wants this overreach forgotten as quickly as possible.
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