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President Obama versus the Constitution (Obama wants Obamacare to be reviewable by no-one)
Volokh.com ^ | April 2, 2012 | David Kopel

Posted on 04/03/2012 8:10:54 AM PDT by Qbert

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, 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.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

(Emphasis added)


TOPICS: Crime/Corruption; Government; News/Current Events; Politics/Elections
KEYWORDS: federalistpapers; obama; obamacare; tyrant

1 posted on 04/03/2012 8:11:07 AM PDT by Qbert
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To: Qbert

Someone send Obama the memo on the 26 states that want it “killed”.


2 posted on 04/03/2012 8:13:35 AM PDT by Sacajaweau
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To: Qbert

In the book “Left Behind,“ a snake-oil salesman named Carpathian brings the World to ruin.

Dictator Baby-Doc Barack is our Carpathian as he tries to bring America to ruin.


3 posted on 04/03/2012 8:17:00 AM PDT by Graewoulf ((Dictator Baby-Doc Barack's obama"care" violates Sherman Anti-Trust Law, AND U.S. Constitution.))
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To: Qbert
Ought to be interesting reading the comments there. I love Volokh Conspiracy. Probably the best legal analyses available to the lay public.

--Headed there now to read. Thanks for the heads up
4 posted on 04/03/2012 8:17:24 AM PDT by Sudetenland (Anybody but Obama!!!!)
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To: Qbert

If Obamacare is overturned, will Obama lecture the Supreme Court as part of the next State of the Union speech?

Hold on a minute, if all goes well, Obama will not be the one who gives the next State of the Union speech!!

Gotta love the Democrat spin on this. Some Democrats are out there saying that if the court overturns the individual mandate, that is actually good for Obama. Go figure.


5 posted on 04/03/2012 8:19:28 AM PDT by Dilbert San Diego
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To: Qbert

Obama really has a tyrannical streak in him. Btw, any of his constitutional law students should demand a refund.


6 posted on 04/03/2012 8:22:11 AM PDT by libertarian neocon
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To: Qbert

Listening to snippets of his calling out the Supreme Court yesterday and it was all lies. The lies are getting more and more absurd, but they keep getting away with it.


7 posted on 04/03/2012 8:22:31 AM PDT by beaversmom
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To: Sacajaweau
Someone send Obama the memo on the 26 states that want it “killed”.

But, you see, 26 states are not a majority of the 58 states in Obamaka.

8 posted on 04/03/2012 8:23:28 AM PDT by immadashell
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To: Qbert
Ultimately, 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.”

What exactly does this clown think the responsibilities of the Court are? To rubber-stamp every piece of legislation that gets passed in Congress? To fill the extra seats during a SOTU address?

9 posted on 04/03/2012 8:24:27 AM PDT by Lou L (The Senate without a filibuster is just a 100-member version of the House.)
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To: Qbert

He HOPES to make CHANGES, but that danged Constitution keeps gettin’ in the way!


10 posted on 04/03/2012 8:24:52 AM PDT by JimRed (Excising a cancer before it kills us waters the Tree of Liberty! TERM LIMITS, NOW AND FOREVER!)
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To: Qbert

I say this will be ruled as unconstitutional and our first foreign born born Islamic mulatto POTUS will be voted out by a landslide come November and history will remember him as the single greatest disaster in the history of the US Presidency.............And Democrats will blame it all on Republicans.


11 posted on 04/03/2012 8:24:57 AM PDT by GrandJediMasterYoda (Someday our schools will teach the difference between lose and loose.)
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To: libertarian neocon

The way this guy treats the Constitution makes me say it’s complete and absolute BS that he’s a Professor of Constitutional law. Show me the degree pal. Show me the College transcripts. It’s like someone claiming they’re a brain surgeon and they use sticks and rocks to operate. This idiot has not the first clue whatsoever about what the US Constitution even is.


12 posted on 04/03/2012 8:35:21 AM PDT by GrandJediMasterYoda (Someday our schools will teach the difference between lose and loose.)
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To: immadashell
But, you see, 26 states are not a majority of the 58 states in Obamaka.

You, apparently, weren't paying attention...there's only 57 states!

13 posted on 04/03/2012 8:38:49 AM PDT by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it)
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To: Qbert

I smell the putrid stench of tyrany! Time to rid ourselves of it.


14 posted on 04/03/2012 8:41:08 AM PDT by Bitsy
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To: Dilbert San Diego
Hold on a minute, if all goes well...

All will definitely NOT go well as long as there is continued mindless hatred for Mitt Romney on the Right, for he will surely be the Republican nominee.

15 posted on 04/03/2012 8:45:47 AM PDT by Wolfstar
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To: Qbert
It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. - I wish I lived in a country that had a free and open press / media. The POTUS just plain flat-out lied about a major case before the SCOTUS. That is news. But we won't hear a peep.
16 posted on 04/03/2012 8:45:52 AM PDT by bobsatwork
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To: Lou L

Well, actually, that “reviewing” stuff was OK for all Presidents prior to this one. But once ‘I Won’ took over those pesky justices were supposed to know their place and question nothing that ‘I Won’ does. His definition of strong majority must closely resemble Bill Clinton’s definition of “is” and “sex”, huh?


17 posted on 04/03/2012 8:46:38 AM PDT by RonInNaples
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To: Qbert

Obama is such a whining queer biotch. It angers me to hear the punk lie. Just hearing his voice is enough to ruin my mood and make me switch the channel/station he is on so I do not have to listen to the damned homo.


18 posted on 04/03/2012 8:47:04 AM PDT by jospehm20
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To: Qbert

Has everyone forgotten the Republicans that voted it in before they even read it? Just about all of them did.

Remember: “you have to vote for it before you can know what’s in it?”

AND THEY DID!

The GOP: The go along to get along party.


19 posted on 04/03/2012 9:06:33 AM PDT by DH (Once the tainted finger of government touches anything the rot begins)
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To: Graewoulf

“O” ... Same planet, different world!


20 posted on 04/03/2012 9:09:32 AM PDT by SMARTY ("The man who has no inner-life is a slave to his surroundings. "Henri Frederic Amiel)
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To: Puppage

“You, apparently, weren’t paying attention...there’s only 57 states!”

Moreover, in addition to the 26 states, there are 2 additional states that filed separate constitutional challenges. So even in Obama’s America, a majority of states oppose this tyrannical law!


21 posted on 04/03/2012 9:19:23 AM PDT by DrC
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To: Qbert

I’ve got a new tagline.


22 posted on 04/03/2012 9:24:26 AM PDT by TruthShallSetYouFree (No, Mr. Obama--Marbury vs. Madison was not an NCAA first round matchup.)
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To: Puppage
You, apparently, weren't paying attention...there's only 57 states!

Still not a majority. Also, I thought he said he had visited 57 states and still had one to go.

23 posted on 04/03/2012 9:31:00 AM PDT by immadashell
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To: JimRed

Exactly. All he needs is one more Supreme Court Judge.


24 posted on 04/03/2012 9:36:39 AM PDT by Bailee
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To: DH

Which Republicans are you talking about?

As I understood, NO Republican Congressman nor Senator voted for it.


25 posted on 04/03/2012 10:20:42 AM PDT by Zman516
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To: Zman516

I stand corrected....it was the stimulus package.

Sorry


26 posted on 04/03/2012 12:33:10 PM PDT by DH (Once the tainted finger of government touches anything the rot begins)
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To: Qbert
Thomas Jefferson ... argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision.

************

BINGO! That's perfect! I LOVE IT!!

When can we get such a Convention of States started?

As signatories to the contract (the Constitution) that established the federal behemoth, only the states can rein in the beast!

27 posted on 04/03/2012 8:04:41 PM PDT by DNME (Paging SARAH PALIN! Please pick up any white courtesy phone.)
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