- The Washington Times - Friday, April 6, 2012

Word seems to have gone out in liberal circles that Obamacare is in trouble with the Supreme Court. A systematic and unprecedented assault is undermining the integrity of the system in an attempt to defend this highly unpopular law.

President Obama claimed Tuesday that the court has not overturned a congressional economic regulation in more than 80 years, saying, “a law like that has not been overturned at least since Lochner, right?” Well, wrong. The 1905 case of Lochner v. New York dealt with a state statute and had nothing to do with the powers of Congress. The law professor should check his notes.

Another problem with trying to invoke precedent is that Obamacare defenders can’t keep their story straight on whether the constitutional authority for the health care takeover was found in the government’s taxing power, regulation of interstate commerce, a necessary and proper power, or something else. White House attorneys still can’t seem to agree, and the grounds kept shifting even during oral arguments before the nation's highest court. It’s never a good sign when the solicitor general elicits laughter in the courtroom.

University of Houston law professor David R. Dow suggested impeaching justices who vote against Obamacare. This is not a new idea - Mr. Dow is cribbing from the segregationists who erected billboards calling for the impeachment of Chief Justice Earl Warren after the court began striking down the Jim Crow laws. Only one justice has ever been impeached, Samuel Chase in 1805, and he was acquitted. Since then, it has been a tradition that impeachment would be used only against judges who committed malfeasance, not for having their own views of the Constitution. Even Franklin D. Roosevelt simply wanted to pack the court with handpicked justices who would support his policies, not be rid of the meddlesome clerks who have the nerve to interpret the law independent of the executive. Mr. Dow’s shortsighted proposal to politicize the high court would only exacerbate the deep divisions in the country and delegitimize the only branch of government that has a shred of moral authority left.

Mr. Obama questioned whether the Supreme Court even had a right to threaten a law passed by a “democratically elected” Congress. Judge Jerry Smith of the 5th U.S. Circuit Court of Appeals asked the Justice Department to clarify whether this statement reflected official White House policy. Attorney General Eric H. Holder Jr. responded that the courts could conduct judicial review but were required to show “particular deference” to Congress in the exercise of its enumerated powers. This cannot include Obamacare because no one knows what power Congress claimed to be exercising.

Mr. Obama set the precedent of attacking the justices during his 2010 State of the Union address, saying their decision in Citizens United v. Federal Election Commission “reversed a century of law to open the floodgates for special interests … to spend without limit in our elections.” Mr. Obama treats the “unelected justices” as just another impediment to his power-to be picked, frozen, personalized and polarized. Perhaps he should appoint a judicial czar to look into the matter.