- The Washington Times - Tuesday, April 3, 2012

For someone who once taught classes at a law school, President Obama doesn’t seem to know much about the powers of the Supreme Court.

At a press conference Monday, Mr. Obama said he did not think the high court would rule that forcing Americans to buy health insurance was unconstitutional. “Ultimately, I am 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.

There’s plenty of precedent for voiding a law like Obamacare. The top justices have invalidated more than 150 federal laws in part or in whole. Nor would there be anything extraordinary about such a step, as courts frequently make these types of rulings. In fact, it would be unprecedented and extraordinary for it to let stand the unconstitutional aspects of Obamacare.

There’s also no truth to the suggestion that Obamacare passed by a “strong majority.” The vote was 219 to 212, a razor-thin margin in which 34 members of the president’s own party voted no. The margin of passage has never been a factor in the Supreme Court’s review of any law. That’s simply not a part of American jurisprudence. In fact, if Mr. Obama believes what he says, he ought to be very satisfied with the validity of the Defense of Marriage Act, which passed in 1996 by a whopping 275 margin in the House and by 71 votes in the Senate.

Mr. Obama even attempted to invoke conservative rhetoric to defend his greatest legislative accomplishment. “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 - and passed law.” Here Mr. Obama confuses judicial activism with judicial review. A former law professor - or in his case, a former part-time adjunct instructor - really should know better.

Judicial review is the long-standing right of the courts to assess the constitutionality of state and federal laws and executive actions. It is at the heart of the system of checks and balances. Judicial activism is the exploitation of the powers of the bench to rewrite laws and regulate the executive and legislative branches in ways that the framers of the Constitution never intended. It is the favored approach of liberal justices such as Mr. Obama’s two unelected Supreme Court appointees, Sonia Sotomayor and Elena Kagan.

If Mr. Obama thinks the Supreme Court is out of line overturning laws passed by large majorities, he should tell us whether he supports the court’s decision in the 1954 case Bolling v. Sharpe, which overturned the act of June 22, 1874, that segregated District of Columbia schools. He should be actively campaigning to reverse the Supreme Court’s 1990 ruling against the Flag Protection Act, which passed the House 380-38.

Mr. Obama proves that you don’t have to be a constitutional scholar to be president. But it would help.

The Washington Times

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