- The Washington Times - Monday, April 2, 2012

President Obama on Monday warned the Supreme Court against overturning his health care law and said he is “confident” the justices won’t.

Mr. Obama, who taught constitutional law at the University of Chicago and once attacked the justices at a State of the Union address, said it would be “unprecedented” for the court to overturn a popular congressional act and raised doubts about the legitimacy of such a move by “activist” and “unelected” justices.

Republicans quickly countered the remarks, pointing out that he had significantly overstated congressional support for the law and that such matters are constitutionally irrelevant anyway.

In his first public remarks since the Supreme Court heard arguments on the health care case last week, Mr. Obama also defended the law’s merits at length, saying it was helping average Americans and those who could not attain health care because of pre-existing conditions.

“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,” he said during a joint news conference with Mexican President Felipe Calderon and Canadian Prime Minister Stephen Harper.

The health care legislation passed the Senate on Christmas Eve 2009 by a 60-39 vote, powered by Democrats’ overwhelming majority in the chamber. No Republicans supported the legislation. In March 2010, Democratic leaders pushed the bill through the House by a more narrow vote of 219-212, again not winning any Republican support.

The president said he expects the court to defer to the will of elected officials in this case — and said that’s the same argument conservatives usually make, though it is accordingly also not the argument liberals usually make.

“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, there’s a good example, and I’m pretty confident that this court will recognize that and not take that step,” Mr. Obama said.

Republicans pounced on Mr. Obama’s comments, led by Sen. Orrin G. Hatch, Utah Republican and Judiciary Committee member, who ridiculed Mr. Obama’s pre-emptive claim of judicial activism and suggested it was sour grapes.

“It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don’t is ‘activist.’ … Judicial activism or restraint is not measured by which side wins but by whether the court correctly applied the law,” Mr. Hatch said.

“In fact, Justice Anthony Kennedy — who I am sure President Obama praises when he likes the outcome — was right to suggest that it would be ‘judicial restraint’ to strike down Obamacare and instead let Congress enact a health law consistent with our Constitution,” he said.

Most of the court’s history-making decisions — including Brown v. Board of Education on segregation, Roe v. Wade on abortion, and Marbury v. Madison on judicial review itself — overturned laws or administrative decisions made by elected officials.

Other Republicans noted that the law passed with a razor-thin margin in the House without their support and only after some serious arm-twisting of a number of reluctant Democrats.

“The president’s health care law passed through a series of backroom deals and an extraordinary parliamentary power grab. If anything is unprecedented, it’s the overreach of the law,” said Brendan Buck, a spokesman for Speaker John A. Boehner, Ohio Republican.

Monday’s warning to the court was not the first time Mr. Obama has taken on the justices. At his 2010 State of the Union address, with the justices present, he attacked the Citizens United decision that struck down limits on political donations by corporations and unions.

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