President Obama, Time for a Refresher Course on Constitutional Law
by John Browning
Tue, Apr 10, 2012, 08:21 AM
At a March 30, 2007, campaign fundraiser, then-candidate Barack Obama stated “I was a constitutional law professor, which means unlike the current president, I actually respect the Constitution.”Like much of what President Obama has told the American people, that statement has turned out to be false, as illustrated by the controversy last week over the president’s April 2 comments about the U.S. Supreme Court and their forthcoming decision about the constitutionality of the Affordable Care Act (also known as “Obamacare”).Vigorously (or desperately?) defending the crown jewel in his domestic agenda, President Obama said “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.”
Seriously, Mr. President?The Supreme Court (or, as he’s referred to them, “an unelected group of people”) doesn’t have the authority to strike down acts of Congress that violate the Constitution?For a supposed former “constitutional law professor,” these statements betray a shocking level of ignorance about the concept of judicial review and the 1803 case, Marbury v. Madison, that enshrined it in American jurisprudence.Marbury made it the hallmark of the judicial branch of government that it has the power to invalidate laws passed by the legislative branch that are unconstitutional, since the U.S. Constitution is supreme and “all laws repugnant to the Constitution are null and void.”This is precisely why federal judges are given lifetime appointments that make them—in theory—immune to political and popular pressure, and thus able to steadfastly apply the Constitution and the law.
President Obama should know this, but after his recent comments, I’m inclined to seek proof that he actually graduated from Harvard Law School, much less served as a “constitutional law professor.”You see, it’s not just that a law professor should know this; every lawyer knows it, and every law student reads the Marbury case early on.In fact, a number of landmark Supreme Court decisions are mandatory for Texas 6th–8th graders to know; Marbury is one of them.The State Bar of Texas, under an initiative from President Bob Black, has even produced a short documentary and other materials about Marbury v. Madison and its significance for educators in Texas to use as part of their social studies curriculum.In other words, to satisfy the TEKS (Texas Essential Knowledge & Skills) standards, Texas eighth graders have to know more than the president knows about Marbury and judicial review.
The president’s comments had a ripple effect.During oral argument last week before the U.S. Court of Appeals for the Fifth Circuit in a separate challenge to Obamacare (Physician Hospitals of America v. Sebelius), senior Judge Jerry Smith asked the Department of Justice lawyer arguing the case, Dana Kaersvang, if the president’s statement reflects the official position of the U.S. government.While Kaersvang agreed that the judiciary could strike down an unconstitutional law, Judge Smith wanted it in writing.He ordered the DOJ to file a 3 page, single-spaced letter by April 5 giving the federal government’s position on the court’s authority of judicial review.And as requested, Attorney General Eric Holder filed the letter.It stated in part that “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 reaction by members of the liberal media, to both the furor over President Obama’s comments as well as the Fifth Circuit’s order prompted by them, was predictably slanted and even hypocritical.Harvard Law School professor, constitutional law scholar, and Obama mentor Laurence Tribe penned a scathing editorial for CNN.com entitled “The 5th Circuit Court’s Insult to Obama,” in which he claimed that the president “has nothing but respect for judicial authority” and called Judge Jerry Smith’s order “a shocking departure from the norms of judicial behavior.”CNN legal analyst and writer Jeffrey Toobin declared the order to be a “judicial hissy fit,” “a disgrace,” and “an embarrassment to the federal judiciary.”And David Dow of Newsweek wrote an article calling for the impeachment of those Supreme Court justices who might overturn the Affordable Care Act.
Yet even Laurence Tribe admitted that President Obama “obviously misspoke” in his comments about the Supreme Court, and Jeffrey Toobin is so lacking in actual practice experience that he doesn’t realize that a federal court is well within its right to require a party to give its understanding of the court’s jurisdiction.Perhaps Toobin doesn’t appreciate that courts exist to protect our rights when politicians trample on them—including a president claiming powers forbidden to him by the Constitution.And as for David Dow, he couldn’t even get his facts straight.He gave the example of Thomas Jefferson’s efforts to impeach Supreme Court Justice “Salmon Chase” in 1805; Samuel Chase was actually the justice who was impeached, while Salmon Chase was a member of Abraham Lincoln’s cabinet who was appointed to the Supreme Court in 1864.And apparently, Dow believes that judicial activism is okay as long as it’s in line with his liberal ideology.He wrote a book entitled America’s Prophets: How Judicial Activism Made America Great.
For me, the most concerning aspect isn’t the reaction by left-thinking critics.It’s the ignorance or the willingness to lie—take your pick—displayed by President Obama.First, let’s settle this whole “I was a constitutional law professor” debate.Barack Obama was never a professor at the University of Chicago School of Law.From 1992 to 1996, he was a “lecturer,” and 1996 to 2004 a “senior lecturer;” he was never even an adjunct professor.He never taught a constitutional law course—instead, he taught an election law course, a seminar on “race theory,” and a course dealing with equal protection rights, in which Marbury v. Madison likely never came up.Next, President Obama referred to the health care law as having been passed by “a strong majority of a democratically elected Congress.”Despite a huge Democratic majority at the time, Obamacare barely passed by a 219–212 margin.That’s not only not a strong majority, it’s barely a plurality.And then there’s Obama’s confusion over judicial activism.Judicial activism isn’t when judges strike down an existing law.It’s when judges permit their personal views, and not the Constitution, to guide their decisions or invent new “rights” where none previously existed.Obama can’t have it both ways.His own Justice Department is arguing that courts should strike down voter ID laws as unconstitutional, and he’d be the first to invoke the power of judicial review if a state were to ban abortions.Arguing here that a Court that would dare invalidate his precious Affordable Care Act must be the “unprecedented” work of “activist” judges is absurd and represents a direct attack on the independence of the judiciary.And Obama’s claim that the Supreme Court hasn’t invalidated any statutes that are “economic” and relate to “commerce” since the New Deal era is incorrect.The list is too long to give here, but let’s just say that some recent examples of laws relating to “commerce” that have been struck down include parts of the Sarbanes-Oxley Act; the Trademark Remedy Clarification Act; the 1998 Harbor Maintenance Tax Act; the Transfer Act (which authorized transferring operating control of certain airports away from the Department of Transportation); and many, many others.
Presidents like Andrew Jackson and FDR publicly clashed with the Supreme Court, but only President Obama has chosen to level his attacks before the Court has even ruled.Whether you call it heavy-handed bullying in an attempt to influence the judiciary or a shocking ignorance about the fundamental concept of judicial review, it’s equally disturbing.For a former “constitutional law professor” to make such statements is like hearing a science professor argue that the world is flat or that the sun revolves around the earth.