God King has temper tantrum, gets disciplined

God King has temper tantrum, gets disciplined April 3, 2012

So our Constitutional Scholar and Tyrant King–used to having the power to indefinitely detain and kill Americans for the Greater Good–tries to bully the SCOTUS and threaten them if they fail to knuckle under to his health care plan. He’s even pulling out all the demagoguery about the Court being unelected and everything. What’s next? “The Chief Justice has made his decision. Now let him enforce it.” Or perhaps, “How many divisions does the Chief Justice have?”

(Note to paranoids: Such behavior should adequately demonstrate that the Administration is not cleverly planning to lose in the Court as Step #134 in its vast and devious plan to achieve some other massively nefarious Ultimate Goal. It is fighting desperately to save the Health Care Plan. Period. End of Story.)

Well. After this bullying temper tantrum, our God King now finds himself getting schooled by yet another court:

(CBS News) In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would 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.”

Nice to see somebody standing up to this bully.

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  • Adrian

    Sorry, but were the Court to strike down the healthcare bill, it would radically reshape the last 70 years of Commerce Clause jurisprudence. (Yes, Congress can force you to buy broccoli — I wish the Solicitor General had come out and said that.) Obama is a bully and a tyrant — for reasons not described in the post above — but his very mild comments on this inherently political decision were perfectly inoffensive.

    • SDG

      Adrian: Why is it I have yet to see anyone offer a single persuasive example of this power? And by a persuasive example, I don’t mean something like Justice Breyer’s BS example of car mufflers, since the government does not oblige anyone to buy a muffler, but merely prevents them from driving on the roads without one. What privately sold good or service has the government obliged citizens just sitting around minding their own business to purchase in the last 70 years, not as a condition for engaging in some other activity but just for the privilege of breathing American air?

    • Larry

      Actually, it would further refine the jurisprudence of the last 70 years, as did Lopez and other cases since the mid 90s. That’s their job.

      Before 1937, Congress was unable to do many, if not most, of the things it does today in terms of controlling the economy. Then, one dark day in 1937 that changed. There wasn’t an amendment ratified by the requisite number of states. Rather, the Court capitulated, and thenceforth ceased to enforce limitations on the scope of the power of Congress over the economy. Congress took that ball to court and eagerly ran with it for decade after decade.

      But, what the Court giveth, the Court taketh. Now, the Supreme Court may tweak the doctrine. It isn’t going to overturn Wickard. It isn’t going to refute Parrish. What it may do is simply state that yes, actually, there are judicial constraints on the power of Congress over the economy. We didn’t say that before, because you never asked the right question. This mandate is the question, and the answer is no.

      • Adrian

        As you can probably guess, I am not happy with Lopez, but I can see that the Commerce Clause rationale for challenged statute in that case (was it about guns in schools?) was sort of forced. Medical expenditures, on the other hand, relate to something like 20% of GDP; “last resort” emergency room care is draining the coffers of local governments; the market for health insurance is totally distorted and screwed up by adverse selection problems, and universal participation is the only way to solve the problem. The Commerce Clause is written all over these facts. I think mandates are stupid and I’d rather have Congress tax us all and set up a single payer system; I think we can all agree that would be perfectly constitutional (for now — we’ll see what the Court does in the years to come)– but the range of options provided by Obamacare is actually less coercive than a tax-financed welfare program. So I really don’t buy the right-wing beef with it.

        • Adrian

          Also, “one dark day in 1937”!? Sheesh, you people really do hate the New Deal, doncha?

        • So because you don’t like the state of health care in the United States you would have the federal government coercively take control and dictate an entire network of industries. This strips over 300 million Americans of any choice in some of their most personal decisions; that’s not a solution that’s trading one set of problems for another (at best, since that assumes that Obamacare would even be effective to begin with).

  • Thing is, I kinda agree with Mr. Obama, just not in this case. I think Marbury v. Madison was wrongly decided. So did Thomas Jefferson, I believe. The three branches of government were supposed to be equals. The supremacy of the Supreme Court has led to something dangerously close to a judicial oligarchy. It’s already, in the words of George Will, a rolling constitutioal convention.

    Even our gracious host has warned about “our judicial robed masters.”

    Judicial review, especially after the 60s decisions, requires reform. Perhaps this possibility of “doing it back to them” can start a conversation with our political opponents about better ways to declare laws unconstitutional.

    • SDG

      IB Bill: What you’re missing is that not all judicial action/activism is created equal. Inventing law via claims of constitutional emanations and penumbras is one thing. Striking down laws asserting federal authority based on claims of constitutional emanations and penumbras is very different.

  • emmayche

    Sorry, Adrian, but the Federal government simply doesn’t have the power to compel you to enter a market. Once you do, they (unfortunately, and way beyond the original meaning of the Commerce Clause) have all sorts of power – but if they have the power under the Commerce Clause to force you to engage in certain commerce, then there is no practical limit to their power.

    And for Obama, supposedly a former Constitutional law professor, to completely ignore Marbury v. Madison, in which the principle of judicial review was firmly established in this country over 200 years ago, is the furthest thing possible from a “mild comment;” it is, rather, the statement of a dictator-in-waiting.

    • Larry

      Obama isn’t ignoring Marbury. He simply believes that Wickard refined Marbury to reduce the scope of the power of review. That’s what he learned in law school, and he’s most certainly not alone. The vast majority of liberal and even centrist and many conservative constitutional scholars are probably in that camp. If they accept the Court refining that again, they remain scholars. Otherwise they become partisans, happy with what the Court gave away in 1937, but not when the current Court of 2012 does its job and refines our jurisprudence.

    • Or maybe the statement of a penultimate leader, finally giving way to somebody like Commissar-in-Chief J Stalin.

  • As loath as I am to disagree with our esteemed host, Obama’s team is far too savvy to not have considered how to play it if they lose this decision. They cannot have NOT seen that there’s a real possibility he could lose, and basic planning requires he have a plan for that, too – and he laid out his plan in the article you just linked: accuse the SC of ‘activism’, wail about how the ‘will of the people’ so conveniently summed up in his will is being thwarted by evil evil Republican forces who will stop at nothing to defeat the pure and altruistic goals of his administration.

    I still say: from a reelection POV, he’s probably better off losing – then, he won’t have to campaign on his record, and will have a handy egg beater with which to froth up his base.

    This is not to say he and his team don’t think they’ll win – it’s just to say they’ve GOT to have a plan B if they don’t – and plan B is not bad, IMHO.

    • “They cannot have NOT seen that there’s a real possibility he could lose”

      Hubris is one of the most blinding agents out there. Obama and the admin have this deer in the headlights look when they discuss this. This latest temper tantrum is another sign that they really, REALLY, didn’t expect to be here.

      • I guess we’ll find out.

        Maybe the difference is whether one thinks of Obama as a Harvard-trained law professor or a Chicago Machine street politician. While perhaps Obama sees himself as the law prof, the guy that got elected is a fully-functioning cog in a well-oiled political machine.

  • teh Wind

    IB Bill is just picking his master. He would prefer to be governed by a certain branch, a certain person. None of the choices he debates are truly dispositive.

  • R. Howell

    “threaten them if they fail to knuckle under…”

    threaten them? where? What in Obama’s remarks can reasonably construed as a threat?

  • An Atheist

    The ADA (“Obamacare”) is a rube-goldberg monstrosity that doesn’t fix our healthcare problem, there’s no doubt about that.

    What we need is a Medicare type program for all. Healthcare should not be for profit and no one should go without it. Every other advanced country in the world understands this. Even we implicitly admit this by forcing ERs to take everyone regardless of ability to pay, we just refuse to take this belief to its obvious, logical conclusion.

    • I agree substantially with that, except I don’t think there is any way you can compel people to NOT practice medicine for profit (mercy, who will do our boob jobs?). Just accept that there will always be a private system of some kind available for those who prefer it and can afford it, but for *essential care*, just forget this Byzantine insurance shell-game altogether and start building, staffing, supplying and maintaining free hospitals, clinics and health centers across the country.

  • Statman

    I think there is plenty of room for the court to throw out the ACA without undoing the precedents from before. The key question is Kennedy’s, “Can you create a market only to regulate it.” The ACA is a completely foreign concept to the idea of self-governance. In fact, contract law experts should really be scared, since if it is allowed to stand, then the idea that contracts can’t be compelled goes out the window.

    All of that said, I think the Appeals Court here is probably overstepping it’s bounds. Does its demand pertain to the question in front of it? Since the judge is commenting a speech the President made, I wouldn’t think so. The judge should stick to reviewing the case in front of him.


  • Jack

    If the supremes are restricted as obo suggests then roe is invald too.

    • Rosemarie


      That’s what I was thinking. Since when do those of a liberal persuasion complain about “judicial activism”? They’ve been fine with it for decades when it allowed them to circumvent the democratic process and get elements of their agenda enacted, like with Roe v Wade and, more recently, gay “marriage” in some states at least.

      Anyway, Obama is misusing the term. It applies when judges stretch and bend the Constitution (particularly the Bill of Rights) in an attempt to find “emanations and penumbras” that (allegedly) contain mystical, hidden constitutional “rights” that no one has yet discovered. This, OTOH, is a straight-up question of whether a certain piece of legislation violates the commerce clause. This is not judicial activism, it is the run-of-the-mill function of the Supreme Court.

  • Andy

    The federal appeals court is out of order – did they demand an explanation from Newt when he said judges should be arrested, or the 9th appeals be abolished? Or my favorite Tom Delay threatening to have hearings over the way the Terry Schiavo case. Politicians routinely go after courts and decisions they don’t like. Look at for what it is – politics. By the way Obama was suggesting that judicial restraint is in order – isn’t that a conservative view – having non-activist judges or is it only perceived liberal judges are activists and perceived conservative judges are merely returning to the Constitution.

    • Chris M

      Obama’s little tu quoque works both ways. Liberals cheerlead judicial activism when it suits them and now decry it when it does not. That’s assuming one would consider overturning the healthcare law as an example of activism in the first place, which is by no means a given.

    • Tim

      From what I understand, most of the conservative criticism of judicial activism relates to decisions decided under “substantive due process.” The healthcare case deals with the Commerce Clause, not substantive due process.

      Some have argued that courts, especially during the FDR era, committed “judicial activism” by greatly expanding Congress’ power to regulate under that clause. Overruling the individual mandate would therefore be halting prior judicial activism (according to the argument) by placing limits on Congress’ power to regulate.

      No matter how the court decides, it will be engaging in some sort of judicial activism because it will probably have to create new law whether the mandate is upheld or overturned.

  • Tim

    It’s not just the president who seems to be having trouble with the laws of the United States. Eric Holder and the Department of Justice are also having some problems:

    “Attorney General Eric Holder and the Department of Justice had sought to levy thousands of dollars in fines against the pro-life activist as well as seeking a permanent injunction banning her from continuing her faithful 20-year ministry outside an abortion clinic in West Palm Beach, Florida.

    ‘But this scheme was thrown out of court and drew criticism from Judge Kenneth L. Ryskamp, who concluded that the government lacked evidence to prove not just one, but “all three elements of its FACE (Freedom of Access to Clinic Entrances Act) claim,” said Mathew Staver, Chairman of Liberty Counsel Action, whose organization is assisting Pine…’

    “The Court is at a loss as to why the Government chose to prosecute this particular case in the first place,” wrote Judge Ryskamp. “The Court can only wonder whether this action was the product of a concerted effort between the Government and PWC, which began well before the date of the incident at issue, to quell Ms. Pine’s activities rather than to vindicate the rights of those allegedly aggrieved by Ms. Pine’s conduct.”


    The DOJ put the woman through 18 months of litigation before the case was thrown out.

  • Observer

    To interpret activism to mean when a judge takes action with regard to law is a bad definition. It would be like saying a cashier shouldn’t point nor direct people on the sales floor. Of course the cashier isn’t supposed to neglect his or her job. However, it doesn’t mean he or she isn’t obligated to do the right thing in the given circumstance of helpinig people in the capacity of his or her role.

    Judges must and have a duty to actively pursuit the proper interpretation of law in accordance with the law of the land. And since it is outlined very clearly by commentaries of the fathers of our land, the declaration of independence, the PreAmble, Articles, and Bill of Rights as what is established to interpret those laws (self-evident and endowed by the creator), they can take measures within their power and in law to safeguard against anything endangering life, liberty, and the pursuit of happiness (domestic tranquility.)