- The Washington Times - Thursday, April 5, 2012

The Senate’s top Republican on Thursday warned President Obama to “back off” of the Supreme Court, three days after Mr. Obama appeared to question whether the justices had the power to rule his health law unconstitutional.

Ever since Mr. Obama said Monday it that would be “unprecedented” and “extraordinary” for the court to overturn a law enacted by a large majority in Congress, the White House has been trying to cool the furor.

On Thursday, the president’s press secretary, Jay Carney, said Mr. Obama was using legal “shorthand” and that was why “the president was not clearly understood by some people.” Mr. Carney gave the explanation about the same time Attorney General Eric H. Holder Jr. was filing a brief with the 5th U.S. Circuit Court of Appeals affirming that the administration does, and always has, accepted judges’ right to rule on the constitutionality of laws.

“The long-standing, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,” Mr. Holder wrote, citing cases dating back to Marbury v. Madison, the 1803 case that most legal analysts say solidified the doctrine.

Still, the Republicans sensed an opening as more legal scholars, including one of Mr. Obama’s own teachers at Harvard Law School, professor Laurence Tribe, said the president misspoke.



Senate Minority Leader Mitch McConnell, who told Mr. Obama to “back off,” said Mr. Obama’s initial comments seemed to be trying to pressure the court to rule in his favor.

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” the Kentucky Republican said. “The independence of the court must be defended.”

Mr. Obama ignited the controversy when, at a news conference with visiting Mexican President Felipe Calderon and Canadian Prime Minister Stephen Harper, he said he expected his health care law to be upheld.

“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, adding that it could be considered “judicial activism” if the justices reversed the law.

On Tuesday, speaking to news editors in Washington, he narrowed his claim specifically to cases under the commerce clause, saying that it has been decades since the court overturned a law that dealt with Congress’ power to control interstate commercial transactions.

“Let me be very specific: We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner, right? So we’re going to back to the ‘30s, pre-New Deal,” he said.

The legal argument Mr. Obama was making is that the Supreme Court has consistently upheld Congress’ ability to enact laws regulating all aspects of commerce.

The court has twice in recent decades overturned laws passed under commerce clause powers: one that tried to make having a gun near a school a federal crime, and the other that made domestic violence against women a federal crime. In both instances, the court said the connection between gun possession or domestic violence and interstate commerce was too tenuous.

In the health care case, the question is whether the law’s individual mandate requiring most Americans to obtain health insurance coverage is permissible.

Backers say people without insurance will consume health services anyway, making them subject to commerce clause powers. Opponents said choosing not to buy insurance amounts to avoiding commerce — and that it would be a stretch of constitutional powers to force them to engage in commerce and then regulate that activity.

The Supreme Court will rule later this summer on that issue, but other challenges are still working their way through the lower courts.

During one of those cases, being argued before the 5th Circuit on Tuesday, Judge Jerry Smith demanded that the Justice Department say whether it agreed with Mr. Obama’s initial comments that appeared to question the right of judicial review.

Thursday’s three-page letter was the answer.

While noting that the courts have the final word on legislation, Mr. Holder said judges have regularly shown deference to acts of Congress, giving them “the presumption of constitutionality.” He said that means challengers must clearly show that a law crosses the line for it to be struck down.

“The president’s remarks were fully consistent with the principles described herein,” Mr. Holder said.

Mr. Obama also got backing from some Democratic allies in the Senate, who said Mr. Obama was correct in his reading of the court and in the constitutionality of the law’s individual mandate, which requires all Americans to obtain health care coverage.

“I think the president seemed very calm and measured,” said Sen. Sheldon Whitehouse, Rhode Island Democrat. “I happen to agree, as a lawyer and an appellate lawyer who’s looked at this issue, that it would be an activist jump for the Supreme Court to deny that a mandate is constitutional after 40 years of it being supported by the Republican Party, from Richard Nixon to [former Sen.] John Chafee to the Heritage Foundation.”

“I think there comes a point when you have to be able to tell the truth about a Supreme Court that is activist and threatening to become even more activist,” he said.

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