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Obama warns ‘unelected’ justices on health care

- 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.

His attack then included the claim that Citizens United could lead to foreign corporations being able to influence U.S. elections, which prompted Justice Samuel Anthony Alito Jr. to shake his head and mouth the words "not true." The ban on donations by foreigners — whether corporations or citizens — was not a question in Citizens United and is based on a different part of federal campaign finance law.

The Supreme Court heard arguments last week in four separate challenges to the health care law and whatever it decides will help shape Mr. Obama's re-election bid, as well as Republicans' strategy to win back the White House.

One of the main constitutional challenges was over the individual mandate to purchase and whether the federal government has the right to require all Americans to purchase health insurance.

Without such a mandate, the president said Monday, the law would not have a mechanism to ensure those with pre-existing conditions can get health care, arguing that the law is constitutional because it should be and is good public policy.

"We are confident that this will be upheld because it should be upheld," he added.

Mr. Obama also defended himself when asked about a recent comment from GOP presidential front-runner Mitt Romney that questioned the president's commitment to American exceptionalism.

"It's still primary season for the Republican Party. They're going to make a decision about who their candidate will be," Mr. Obama said. "I will cut folks some slack for now because they're still trying to get their nomination."

But he then pivoted to defend his record, referencing his speech at the 2004 Democratic National Convention.

"It's worth noting that I first arrived on the national stage with a speech at the Democratic convention that was entirely about American exceptionalism and that my entire career has been a testimony to American exceptionalism," Mr. Obama said.

Mr. Romney, who has been training most of his fire on Mr. Obama in recent weeks instead of his GOP rivals, said Saturday that the incumbent president "doesn't have the same feelings about American exceptionalism that we do."

"And I think over the last three or four years, some people around the world have begun to question that. On this Tuesday, we have an opportunity — you have an opportunity to vote, and take the next step in bringing back that special nature of being American," Mr. Romney said during a speech in Wisconsin.

While the first questions for Mr. Obama were on health care and Mr. Romney's latest attack, the president and the leaders of Canada and Mexico focused much of their prepared remarks on trade and announced an agreement to roll back some regulations to help boost trade among the three neighboring countries.

Imports and exports between the three countries now exceed $1 trillion, and the leaders say they plan to simplify bureaucratic red tape involved in trade deals to help increase that dollar figure.

During the one-day summit, the three leaders also discussed immigration and border issues, as well as the violence of Mexico's drug cartels and efforts to curb the violence as well as reduce the demand for drugs in the U.S. and Canada.

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