The Imperial Presidency

"In Europe, charters of liberty have been granted by power. America has set the example of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness." — James Madison

In the wake of President Obama’s moronic and widely-lampooned comments on judicial review on Monday (April 2. 2012), President Obama offered the following lame (and incorrect) walk back on Wednesday:

On Monday 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 — 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, uhhh, an uninelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.”

Putting aside the fact that ObamaCare passed with anything but a “strong majority” of Congress, the concept of judicial review has been established for over 200 years; for a president not to understand this displays shocking ignorance. Not to mention the fact that most of the liberals’ favorite Supreme Court decisions involved overturning laws that were enacted by democratically elected Congresses or legislatures, e.g., Roe v. Wade, Lawrence v. Texas and many more.

So on Wednesday (April 4, 2012), in his appearance before the Associated Press – the ultimate friendly audience – Obama tried to walk back yesterday’s blunder in response to a softball question:

MR. SINGLETON: “Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

THE PRESIDENT: “Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on an 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.”

This is, of course, entirely different from what Obama said Monday, but it comes no nearer the truth. First of all, when did ObamaCare become an “economic issue,” a matter of “commerce”? I thought it was all about women’s health care, like Roe v. Wade. Evidently that was a misunderstanding.

But that’s a minor point. Is there any truth to Obama’s claim that the Supreme Court hasn’t invalidated any statutes that are “economic” and relate to “commerce” since Lochner v. New York, which was in 1905? Of course not. To name just a few examples a great deal more recent than 1905, the Court ruled unconstitutional provisions of the Sarbanes-Oxley Act that had permitted only “for cause” removal of members of the Public Company Accounting Oversight Board in 2010; the 1990 Mushroom Promotion, Research and Consumer Information Act in 2001 (this case was actually quite similar to ObamaCare because the Court held unconstitutional provisions that required mushroom growers to contribute to mushroom promotion programs); provisions of the Patent and Plant Variety Remedy Clarification Act, the Trademark Remedy Clarification Act, and the Copyright Remedy Clarification Act in 1992; the Harbor Maintenance Tax Act in 1998; the Transfer Act which authorized the transfer of operating control of Washington National Airport and Dulles International Airport from the Department of Transportation to the Metropolitan Washington Airports Authority in 1991; and many, many more dating back to 1905.

Obama’s bungling on this (which has yet to be called a “gaffe” or more properly “a series of lies” by anyone I’ve yet seen in the media) prompted the Fifth Circuit yesterday to ask a DOJ lawyer who was litigating a case concerning ObamaCare to clarify whether the DOJ was now taking the position that the federal judiciary did not have the power to overturn ObamaCare. Some folks on the left went absolutely apoplectic over this, because it was an unusual event. Mostly, however, that is because most lawyers aren’t cursed with clients who are dumb enough to say, on the news, that the court currently deciding their case has no legitimate authority to do so. As was pointed out at Hot Air, Obama is the head of the DOJ and the Fifth Circuit was entitled to know if Obama’s statements signaled a change in the government’s position during this litigation.

Words and phrases have meaning. While painfully obvious, we are right to reconsider the simple importance of this fact. The late Edwin Newman, noted grammarian and NBC news correspondent, often warned of the devolution of the English language, especially in its Americanized form. His warning was meant to cover not merely the etymological, but also the political and cultural. A language that becomes too malleable, too informal to preserve definitions and distinctiveness can become a tool for cultural decay and political mischief. (This was covered in his book; Strictly Speaking: Will America be the Death of English?). Such is the concern over Barack Obama's recent chastisement of the United States Supreme Court in the aftermath of oral arguments before the court regarding the constitutionality of the Patient Protection and Affordability Act (PPACA), popularized as "ObamaCare."

While I cannot attest to current levels of instruction in American government in public schools today, I can speak with some authority over what I learned as a high school student many years ago. We were taught that among the many features of our American form of government, one that was purposefully provided, even institutionalized, was a separation of powers. The first three articles of the Constitution of the United States provide a tripartite separation of duties and responsibilities designed for the ongoing conduct of the national government and as a bulwark against the concentration of power in one branch. In Article III, Section 2.2, the Constitution clearly states:

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

With this sentence, we see that the Supreme Court is charged with consideration of matters of compliance to “constitutional conformity” of any law passed by Congress and executed by the president as needed. This is the heart of the concept of judicial review. In theory, a lifelong appointed slate of Supreme Court justices, shielded from the potential influence of electoral pressures, can and will determine if legislation does indeed bear constitutional scrutiny. Keep in mind that constitutional conformity does not include the making of new rights within the Constitution — this is “judicial activism.” An activist judiciary is not one that strikes down laws passed by Congress. An activist judiciary is one that strikes down laws passed by Congress for reasons that cannot be fairly said to be contained within the text of the Constitution, or more properly one that invents law from the bench, i.e. Roe v Wade.

Most conservatives were in favor (generally speaking) of the Gramm-Rudman-Hollings Act, which was passed with broad, bipartisan support in both chambers of Congress. When the Supreme Court struck this act down, I don’t recall any conservative accusing the Court of engaging in judicial activism, because the Court’s reason for striking the bill down was firmly rooted in the text of the Constitution. By way of contrast, an excellent example of judicial activism would be virtually every SCOTUS Eighth Amendment decision for the last 65 years. The plain text of the Fifth and Fourteenth Amendments indicate that the government can constitutionally take a person’s life (so long as he or she is afforded due process of law). At the time these amendments were enacted, capital punishment was virtually the uniform punishment for all felonies. Nonetheless, the Supreme Court has taken it upon itself to declare the death penalty unconstitutional for every crime other than murder, despite the fact that neither the text of the constitution nor history compels this result. At one point, the Supreme Court actually declared that the death penalty was unconstitutional, despite the fact that the constitution explicitly provides for the death penalty. This is what is meant by “judicial activism,” not “striking down statutes that were passed by Congress.”

The Fifth Amendment states:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

So, when former University of Chicago Law School lecturer Barack Obama issued veiled warnings against an unfavorable ruling on the PPACA, it came as a disappointment beyond just the political implication. Contrary to popularized recitations of Obama's past activities, he was not a professor of law, in the true academic sense. According to the university's own website, inquiries into Obama's faculty status were answered thusly:

”The Law School has received many media requests about Barack Obama, especially about his status as "Senior Lecturer."

From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track (emphasis added). The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers has high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.”

While noteworthy, the distinction is not that important in this context. Apologists will cite Obama's brief guest lecturer stint as his qualification to be a "constitutional scholar," even though there is no paper trail of scholarly books or even published treatises by him in evidence of that assertion. What is important is the lack of understanding of constitutional principles that a full professor, or a lecturer like Obama, demonstrates. As a one-time lecturer at a prestigious law school, the president should have a far better grasp on basics that are understood by high school students. His pronouncements at Monday's White House lawn ceremony confirm either an abject ignorance of the law he supposedly was qualified to teach — and now uphold as chief executive — or they were part and parcel of a long-demonstrated dismissive attitude toward constitutional limits on government. Flanked by visiting heads of governments Felipe Calderón of Mexico and Stephen Harper of Canada, Mr. 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, 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.”

Mr. Obama, therefore, offers us two alternatives regarding his grasp on his role and role of other branches of government. Neither choice presents anything remotely palatable to American citizens who pay attention. There are other problems with Obama's attitude regarding the potential overruling of his supra-constitutional health care mandate, besides his muddling the concepts of "judicial review" versus "judicial activism." He seems to eschew the idea that "an unelected group of people" (i.e., the Supreme Court) should have a say in matters related to his legislative projects. This is an interesting attitude, as he has surrounded himself with a platoon of appointed "czars," people who have not had to endure any oversight or confirmation scrutiny, and has placed them in virtually unfettered positions of policy decision-making. It had been my seemingly simplistic understanding throughout the years that executive policy emanated from cabinet-level departments. These departments, in turn, were headed by presidentially appointed officials who faced the glare of congressional vetting. Obama has chosen to eliminate this process in large part with an insular cabal of unaccountable policy masterminds who are free to operate outside the sunshine of scrutiny. So, while Mr. Obama has a problem with a constitutionally mandated — and vetted — appointed Supreme Court, he has no problem with unelected and unconfirmed apparatchiks who formulate policy that affects every single citizen in this nation. Then again, intellectual honesty is never the strong suit of the statist.

The president's legal theory forms no part of constitutional jurisprudence. He claims no less than that the Supreme Court has no right or power to review the constitutionality of congressional legislation. The president's theory is nowhere approved or mentioned in a single state, federal, or Supreme Court case. It is not once mentioned in the Federalist Papers, a publication explaining the Founders' rationale for the drafting of a new constitution. James Madison did not once mention the theory in notes taken at the Philadelphia Convention. It is not taught at any law school in the United States. It forms no part whatever of American or British jurisprudence. In fact, it is an invention, a legal fiction, and an assault on the Supreme Court's powers of judicial review established by Supreme Court Justice John Marshall in Marbury v. Madison.

The Supreme Court has been nullifying congressional legislation deemed unconstitutional for more than two hundred years. It is, therefore, boldly fallacious to suggest that "unelected Supreme Court justices" are now embarking upon an "unprecedented" usurpation of the Constitution. In fact, it is the people's constitutional right to challenge the constitutionality of congressional legislation. The Supreme Court, the highest authority on constitutional issues, is vested with the power and obligation to determine the constitutionality of legislation challenged by the people.

The president nearly gave away the game during his press conference Monday. After a long soliloquy about the "human element" the justices would be letting down if they ruled against his administration, Obama slipped and almost said he expected the law to be overturned rather than upheld. (He corrected himself mid-sentence.)

"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," Obama claimed. Perhaps he meant "democratic" with a capital “d”. Only Democrats voted for the law and it passed the House by just seven votes despite a three-fifths Democratic majority in that chamber.

According to one careful estimate, the Supreme Court has struck down 53 federal statutes between 1981 and 2005. So in post-Marbury v. Madison America, it wouldn't be exactly "unprecedented." Didn't Linda Greenhouse teach us that "unprecedented" was a word used by people whose legal arguments are without merit?

Obama chided conservative commentators who complained about "judicial activism or a lack of judicial restraint" when "an unelected group of people would somehow overturn a duly constituted and passed law." He concluded: "Well, this is a pretty good example."

Supporters of the president have been laying the groundwork for this reaction ever since it became clear that the Supreme Court wasn't simply going to rubber stamp the administration’s request for untrammeled federal power. Greenhouse insisted the constitutional challenge was baseless but sighed "the justices will do what they will do." Paul Krugman asserted “while most legal experts seem to think that the case for striking the law down is very weak, these days everything is political.”

This has nothing to do with the law, they chant. It is simply the "wingnuts" on the Supreme Court deciding to impose the Tea Party's vision of the Constitution on America. (Yet if the law is upheld, the same people will celebrate the Court as a great and powerful body whose wise rulings should go unquestioned, with the "wingnut" who cast the deciding vote venerated as the preeminent jurist of modern times.)

What is at stake here isn't the Tea Party's Constitution. It is the Constitution written by the Founding Fathers and ratified by the American people. It is the idea that the federal government derives its power from the consent of the governed, consent given not merely every two to six years at the ballot box but when a large majority of the states and the people expressly delegate power to the central government.

Nowhere in the confident declarations of the health care law's constitutionality do we see any evidence that the people who wrote or ratified the Constitution intended to give the federal government these powers. More than half the states in the country have joined in the constitutional challenge and plainly don't want to delegate this police power to Washington.

The president's criticism of the Supreme Court justices does find support in the political doctrine of "Positivism." The positivist theory, developed in Germany following the First World War, holds that a natural law, or the rule of law, simply does not exist. The idea that men are endowed by their creator with certain unalienable rights is therefore patently absurd. "In short, every single tenet of the traditional conception of the rule of law is represented as a metaphysical superstition. The law by definition consists exclusively of deliberate commands of a human will." The legislature is not bound by precedent, by custom or tradition, or by considerations of justice. As apparently vulgar and irrational as is the positivist theory, Hitler used it to leverage the Nazi Party first to power and then to totalitarian power .

In his analysis of the positivist theory, F.A. Hayek writes:

“It was consequently here that the ideal of the rule of law was first deprived of real content. The substantive conception of the Rechtsstaat, (a state bound by the rule of law); which required that the rules of law possess definite properties, was displaced by a purely formal concept which required merely that all action of the state be authorized by the legislature. In short, a "law" was that which merely stated that whatever a certain authority did should be legal. The problem thus became one of mere legality. By the turn of the century it had become accepted doctrine that the "individualist" ideal of the substantive Rechtsstaat was a thing of the past, "vanquished by the creative powers of national and social ideas. This new formulation, known as the "pure theory of law" signaled the definite eclipse of all traditions of limited government.”

The concept of the rule of law and the subordination of central government to the enumerated powers of an American Constitution have created a most prosperous, just, and free United States. Americans break faith with the Constitution and the tradition of constitutional government only at their peril. Hayek's magnum opus, The Constitution of Liberty, was written long before America's present constitutional crisis. Nevertheless, Americans should recall Hayek's warning — as relevant now as it was then — and take it to heart, for:

“Only a demagogue can represent as "antidemocratic" the limitations which long-term decisions and the general principles held by the people impose upon the power of temporary majorities. These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which the people can determine the general character of the order under which they will live.”

(You download a free PDF version of Hayek’s book by clicking here.)

Operating in a manner inconsistent with time-honored constitutional principles is a hallmark of this presidency. What cannot be achieved legislatively, the current White House occupant will enforce through executive order. His attitude toward the Supreme Court bears no difference from that which the Democratic Party ascribed to President Richard Nixon some thirty-nine years ago. They referred to him as the "Imperial President," as coined by noted historian Arthur Schlesinger, Jr., for Nixon's perceived growth of the power of the presidency. It is arguable that this president is showing a far greater propensity toward the acquisition of political power than Nixon himself ever did. But what else could we expect from an Alinsky radical; “Pick the target, freeze it, personalize it, and polarize it. In conflict tactics there are certain rules that [should be regarded] as universalities. One is that the opposition must be singled out as the target and “frozen.” Now Obama’s target is the Supreme Court of the United States.

Words have meaning, Mr. Obama. It would be conducive to good government to learn them for their true meaning — and to not use them for demagogic purposes.