- The Washington Times - Tuesday, April 3, 2012

President Obama’s complaints about the Supreme Court’s critical review of his health care law suggests that he has a real problem with the Constitution’s separation of powers doctrine.

He also seems to have a problem understanding that the court is a “co-equal” branch of government. Its powers are set forth in the Constitution. This is not some obscure government body that can be lectured about its duties and insulted as nothing more than - in Mr. Obama’s words - “an unelected group of people.”

Just a few days after the highest court in the land heard three days of oral arguments in a lawsuit brought by 26 states against the health care mandate, Mr. Obama seemed to be issuing a not-so-veiled warning to the justices, some of whom appeared to suggest that they may be prepared to strike it down.

Mr. Obama, in very blunt language, essentially was lodging a pre-emptive attack on the justices - rare for a president in a pending case - by flatly telling them that striking down his mandate would be an unacceptable act of “judicial activism.”

“I’d just remind conservative commentators that, for years, what we’ve heard is that 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,” he said in a Rose Garden news conference Monday.

“Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

If the judges didn’t get his message, he added that it would be an “unprecedented, extraordinary step” for the court to strike down the mandate in a law passed by “a strong majority of a democratically elected Congress.”

Excuse me, Mr. President, but the vote by which a law is passed is irrelevant to whether it is constitutional or not. As it happens, the law was passed by the slimmest of margins along party lines.

This is a president who taught constitutional law at the University of Chicago, who graduated from Harvard Law School, who was president of the Harvard Law Review.

Did he miss the class that dealt with the separation of powers doctrine? Did he forget the lecture in Constitutional Law 101 about the Supreme Court’s inherent authority as a co-equal branch of government?

There is nothing in the Constitution that suggests the court is an inferior branch of government because the justices are “unelected” and the president and members of Congress are elected by the people.

Indeed, Article III of the Constitution clearly states: “The judicial Power of the United States, shall be vested in one supreme Court,” with no restrictions on the court’s purview. Indeed, it says, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.”

What’s this business about “unprecedented” if the court should strike down Obamacare? That’s what the court has done in countless cases throughout our history - striking down laws that violate the Constitution - from Marbury v. Madison in 1803 to anti-free speech laws in campaign finance reform.

Maybe Mr. Obama skipped his law class on the day it took up the Supreme Court’s decision in 1936 when it struck down 16 laws in New Deal legislation. At least President Roosevelt had the decency to wait until he had won re-election before attacking the court on that one.

Obviously, the president knows full well that the court under Chief Justice John G. Roberts Jr. has overturned a lot of laws in some major cases.

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