Obama’s unprecedented definition of ‘unprecedented’

“I am confident 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.”

That was President Obama earlier today, talking about the legal challenge to Obamacare the court heard last week — and demonstrating once again he doesn’t have a very firm grasp on the meaning of “unprecedented.”

After all, the Supreme Court has been overturning laws — which necessarily have been passed by a majority of a democratically elected Congress — since 1803’s Marbury v. Madison decision. By this count citing the Government Printing Office, the court declared 158 acts of Congress unconstitutional between 1789 and 2002, which works out to one about every 16 months. Which strikes me as “precedented.”

Or perhaps the operative word in Obama’s was “strong,” and only laws passed by “weak” majorities are worthy of being overturned? I would not grant that the size of the congressional majority necessarily speaks to a law’s constitutionality. But even if that were so, Obamacare hardly passes “unprecedented” muster. It passed in the House by a vote of 219-212 — that’s 50.8 percent of votes cast in favor to 49.2 percent against — and in the Senate by a more comfortable 60-39 (although the votes on the controversial reconciliation bill that enabled the two chambers to come together on a common text passed only 220-211 and 56-43, respectively).

Now, let’s look at a relevant law the Supreme Court previously overturned — the Gun-Free School Zones Act of 1990, voided in the United States v. Lopez decision in 1995 (which also concerned the Commerce Clause and which was cited by the plaintiffs in their challenge to Obamacare). That act was part of the broader Crime Control Act of 1990, which was so strongly supported that it passed the Senate by a voice vote and the House by a vote of 313-1.

Again, “precedented.” Let’s not even get into “extraordinary.”

In case you’ve forgotten: This man once taught constitutional law at an elite university. Yet, when it suits him better, he chooses to ignore some of the most basic elements of the three-branch system of government said Constitution established.

As for one of the other main elements of his statement today:

I just remind conservative commentators that for years we have heard 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.

I would respectfully submit that the president has either not heard or not understood the actual criticisms leveled by these “conservative commentators.” I wonder: Can our commenters, regardless of ideological leaning, do any better in identifying what “the biggest problem on the bench” was said to be?

– By Kyle Wingfield

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252 comments Add your comment

saywhat?

April 2nd, 2012
4:10 pm

Judicial activism is only judicial activism if a conservative says it is.

carlosgvv

April 2nd, 2012
4:14 pm

After the Supreme Court renders a decision, will anyone in our State Govt. tell the people just how much the State spent in legal fees trying to get Obamacare defeated? This has been nothing but a fool’s errand since the beginning and has wasted huge amounts of money that could have been spent for the people’s benefit, and not for some political agenda.

Finn McCool (Class Warfare = Stopping Rich People from TAKING MORE of OUR MONEY)

April 2nd, 2012
4:16 pm

The Supreme Court can wring their hands about penalizing people who don’t buy health insurance. But it’s actually been that way for a long time.

http://www.slate.com/articles/business/moneybox/2012/03/obamacare_and_the_individual_mandate_penalizing_people_who_don_t_have_health_insurance_is_nothing_new_.html

saywhat?

April 2nd, 2012
4:24 pm

Tune in next column for Newt’s profound definition of “profound”. ;)

JV

April 2nd, 2012
4:25 pm

I don’t think talking like this is going to help his case.

Steve

April 2nd, 2012
4:27 pm

Can’t wait until Obama and Hillary (2016) repack the court with liberals. It’s time.

Kyle Wingfield

April 2nd, 2012
4:27 pm

carlosgvv: The special assistant AGs handling the case are working pro bono. So, “huge amounts of money” is approximately as accurate as “unprecedented.”

Common Sense

April 2nd, 2012
4:29 pm

Apparently POTUS does not grasp why we have a SCOTUS.

And he’s supposed to be a Constitutional Scholar at that.

MarkV

April 2nd, 2012
4:29 pm

Leave it up to Kyle to write a whole article of an attack on the President based on the use of one word. Like he did recently with his “interpretation“ of the word “flexible.”

I hope that Kyle and others on his side have noticed that a statement about President Obama’s exchange with President Medvedev, equivalent to his own, has received a “Pants on Fire” verdict by the AJC PolitiFact. No mas pantalones?

Jefferson

April 2nd, 2012
4:31 pm

Your hate is showing, picking on his diction.

Road Scholar

April 2nd, 2012
4:32 pm

“This man once taught constitutional law at an elite university.”

So, I’ll trust his opinion, even though it may be biased, over your opinion, which is always biased!

“I would respectfully submit that the president has either not heard or not understood the actual criticisms leveled by these “conservative commentators.”

So when has a conservative commentator ever given President Obama an inkling of respect, let alone any understanding?

“Can our commenters, regardless of ideological leaning, do any better in identifying what “the biggest problem on the bench” was said to be?”

It is only judicial activism if you disagree with the ruling, eh conservatives?

So Kyle, if it is struck down, esp in its entirety, what substitute will the conservatives recommend? Nothing? Something? And how long will it take to get done? Much of what is in the law came from conservatives. Will they embrace healthcare improvements? (improvements means betterment for the majority, and the poor.)

Kyle Wingfield

April 2nd, 2012
4:34 pm

Good grief, Finn: Do you really believe that losing a tax subsidy, because you choose to stop the behavior being subsidized (buying insurance), is equivalent to being fined because you never chose to behave that way in the first place?

Patrick

April 2nd, 2012
4:35 pm

“Can our commenters, regardless of ideological leaning, do any better in identifying what “the biggest problem on the bench” was said to be?”

I’ll take “who is Clarence Thomas?” for $100 Alex…

Road Scholar

April 2nd, 2012
4:37 pm

Oh and why didn’t the Georgia legislature pass a bill setting up the healthcare exchanges, that would enable citizens to purchase healthcare at reduced “bulk”rates?

Common Sense

April 2nd, 2012
4:38 pm

“So when has a conservative commentator ever given President Obama an inkling of respect, let alone any understanding?”

When was he supposed to have earned this respect?

Kyle Wingfield

April 2nd, 2012
4:39 pm

MarkV: Hardly. There’s a world of difference between what I wrote and the statement PolitiFact checked. I never said what specifically Obama had in mind — presumably, only he, his advisers and perhaps the Russian government know — only that it would be more favorable to the Russians and unpopular at home than he was willing to defend in an election campaign. (Which I still believe to be true.)

carlosgvv

April 2nd, 2012
4:40 pm

Kyle – “The special assistant AG’s are working pro bono”

And you know this because?

Inside Out

April 2nd, 2012
4:41 pm

Ok Kyle we get it…you do not like President Obama…..But for you to play the word game is just petty…. You should be bigger than that…..At least it would be nice if you were….

Just saying..

April 2nd, 2012
4:42 pm

Kyle-
Spent a lot of time parsing George W.’s pronouncements, did you? For the amount of material available, missed those columns.

[...] word, “unprecedented”. It doesn’t mean what Barack Obama seems to think it [...]

dbm

April 2nd, 2012
4:43 pm

Finn McCool

April 2nd, 2012
4:16 pm

So there is something else besides Obamacare that needs repealing. But then, I already knew that.

SwamiDave

April 2nd, 2012
4:43 pm

Actually say, “judicial activism” would be if this court replaces this legislation with something that they consider “better” (i.e. wishes among some that the court assume some obligation to “solve” the problem if this legislation is declared unconsitutional). Their legitimate response would be that ACA is unconstitutional as the federal government has no authority under our Constitution to mandate an individual participate as the result of simple existence. Under a limited government by, of, and for the people where government is granted authority under the consent of the governed, it simply doesn’t exist.

….and actually, carlos, if the Supreme Court renders a decision finding this legislation is indeed unconstitutional, then the “huge amounts of wasted money” fall to the responsiblity of liberals and Democrats who worked for its passage. All of the money tied into passage and the subsequent legal challenges would have been much better never spent. The “fool’s errand” was led by the Obama Administration and Democratic leaders in Congress.

-SD

Kyle Wingfield

April 2nd, 2012
4:45 pm

Road Scholar @ 4:32: I imagine the replacement proposal will look a lot like HR 3500, which Tom Price proposed (including an earlier version introduced before Obamacare was passed).

MarkV

April 2nd, 2012
4:45 pm

Yeh, Kyle, you only used a nasty innuendo of “will cave in,” and Eric Johnson put the same thing in words more specifically. Big difference.

dbm

April 2nd, 2012
4:48 pm

Jefferson

April 2nd, 2012
4:31 pm

Inside Out

April 2nd, 2012
4:41 pm

Concepts are important. They play a crucial role in our thinking, and our thinking determines our actions. Using them loosely tends to sabotage thinking. Objecting to misuse of a concept is not hateful or petty.

Just saying..

April 2nd, 2012
4:48 pm

Kyle: “Hardly. There’s a world of difference between what I wrote and the statement PolitiFact checked. I never said what specifically Obama had in mind — presumably, only he, his advisers and perhaps the Russian government know — only that it would be more favorable to the Russians and unpopular at home than he was willing to defend in an election campaign. (Which I still believe to be true.)”

Kyle, I realize you’re shocked, shocked. But which do you believe:
-This is the first President to ever say this?
or
-This is the first President to be recorded saying this?

jeffrey

April 2nd, 2012
4:49 pm

Unprecedented. Funny word. If republicans knew what it meant they might apply it to the opposition they have shown toward governing the last 18 years.

Inside Out

April 2nd, 2012
4:49 pm

Its ok…if the ACA is overturned…the Church will take care of them..Except for those that do not bother to go to church …

markie mark

April 2nd, 2012
4:49 pm

Well said, Swami…..

carlosgvv

April 2nd, 2012
4:50 pm

SwamiDave

Nobody forced The State of Georgia to challenge ObamaCare. No amount of convoluted thinking on your part will change this.

Kyle Wingfield

April 2nd, 2012
4:50 pm

Inside Out: The “word game”? This is the argument he made for why the law should be upheld, when asked at a press conference whether he’s worried it will be struck down. This is how he chose to make his own case, by making a false claim about whether the court has struck down such a law before, so why should I not point out that it was false? (Also, this gem: “I am confident this will be upheld because it should be upheld.” Circular logic much?)

Just saying: Well, I wasn’t writing columns when Bush was president. But I think you’ll find a good bit of parsing the GOP candidates’ statements in my pieces about their debates.

carlosgvv

April 2nd, 2012
4:52 pm

Kyle

Messrs. Rivkin and Casey are the lawyers who represented Georgia in challenging ObamaCare before the Trial and Appelate Courts. Did they work pro bono?

dbm

April 2nd, 2012
4:52 pm

Judicial activism, properly understood, means a court reading the law or the constitution as saying what the court wants it to say, rather than what it actually does say. This definition can be very difficult to apply, but it is the right one. Unfortunately some people have taken to throwing around the phrase “judicial activism” much too loosely.

Pizzaman

April 2nd, 2012
4:54 pm

Wow! A republican using the word “respectfully” a tirade against the President! Unprecedented!

Kyle Wingfield

April 2nd, 2012
4:56 pm

carlosgvv @ 4:40: Um, because as much has been said at every turn? Because the AG reports on fees paid to outside counsel demonstrate as much? Need something else?

Kyle Wingfield

April 2nd, 2012
4:58 pm

carlosgvv: Rivkin and Casey? The list of outside counsel working for Georgia is at the bottom of this press release.

real john

April 2nd, 2012
4:58 pm

As usual, great article Kyle. Dems can’t stand when “facts” actually get in the way. Man, how dare you actually bring evidence to the table? So as usual, the lib bloggers can’t really debate you on the evidence so they try and turn the attention to another unrelated point.

The people who actually understand the point of your article get it…Obama and certain Dems love to go overboard in describing a “crisis.”

Stephenson Billings

April 2nd, 2012
4:58 pm

Maybe Obama was just hoping no one would research what he says and just take his word for it? :rolleyes:

HIPPOCRIT

April 2nd, 2012
4:59 pm

So let me understand OBAMALOGIC
if Congress passes a law then its Constitutional and cannot be overturned…. so if we just get Congress to pass a law exempting white males making less than $200,000 per year from paying any taxes then its constituitonal???? lets get to work whiteys

Inside Out

April 2nd, 2012
5:00 pm

The state of Georgia forces me to buy auto insurance….Kyle would you support me if I challenged that in state court against the republicans???

Don

April 2nd, 2012
5:00 pm

Now, Kyle….don’t go telling the truth and support it with facts, you’ll just upset the liberal reader base of the AJC. LOL

real john

April 2nd, 2012
5:01 pm

Carlosgvv:

If you are so interested in how much GA pays, why don’t you look up how much has been paid to the Atlanta Public School teachers over the last year even though they are being fired??

How much did Beverly Hall and the APS principals and teachers steal from the tax payers?

Don

April 2nd, 2012
5:01 pm

@ inside out….no the state doesn’t. You don’t HAVE to drive a car, you choose to.

HIPPOCRIT

April 2nd, 2012
5:03 pm

Inside Out
You are not forced to buy auto insurance, you are required to buy it if you OWN a car…….. and you can be charged different rates based on driving record and other factors (pre-existing conditions)……. if you don’t like it have the state legislature and the govenor pass a law changing it.

Stephenson Billings

April 2nd, 2012
5:03 pm

“The state of Georgia forces me to buy auto insurance”

Oy!, not THAT argument again. But since you seem to be a bit behind, a few points: It’s a state law, not federal law. Big difference. Second, you don’t have to buy insurance if you don’t have a car. No one’s forcing you to buy a car…. yet…..

real john

April 2nd, 2012
5:05 pm

Also INSIDE OUT…the state requires you to carry liablilty insurance so that if you drive like an idiot and injure someone else, that person is taken care of.

The state only requires you to carry the liablily for someone else. They don’t require you to carry coverage for damage to your own vehicle.

MarkV

April 2nd, 2012
5:06 pm

If Kyle is so keen on criticizing the President for the use of an inappropriate word (unprecedented), then he should be more careful in his own choice of words. The sentence “I am confident this will be upheld because it should be upheld” is not a case of circular logic.

Kyle Wingfield

April 2nd, 2012
5:07 pm

Inside Out @ 5:00: Sigh. How is the auto insurance mal-analogy still in circulation?

First, there’s a huge constitutional difference between the federal government and the state government. The latter can make you do all manner of things the former cannot.

That’s really all it takes. But just in case, here’s a second one: You can choose not to have a car, impractical as it might be, but you cannot choose not to exist (as it relates to the individual mandate).

Third, you are not required to insure against damage to your own car, only against damage you might cause to others’ cars.

Need I go on?

HIPPOCRIT

April 2nd, 2012
5:09 pm

kyle
logic is to liberal thinking
as
oil is to water

Wade Hampton

April 2nd, 2012
5:09 pm

From Brandon Smith………Slave Mentality………..Dedicated to all who grovel at the feet of nine government lawyers————
.

But what are the signs of this unconscious desire for collectivism and control? What makes a slave do what he does? Here are just a handful of explanations to consider…

The True Slave: The true slave is not a person who has been shackled, beaten, tortured, and made to comply under threat of death. As long as that poor soul has the spirit of rebellion and is ever seeking freedom, they are not imprisoned fully. The true slave is a person who enjoys their subservience, who is weighted with fear by the very idea of independence from the system, and who would actually fight and die to maintain the establishment which enslaves them. The true slave is not able to imagine living any other life beyond his micro-managed existence.
.
The Obsession With The Law: The slave mentality, though illogical and psychotic, still requires a certain foundation to hold it together. The laws of governments tend to suffice. These laws may go completely against the force of inherent conscience, but because the slave has already abandoned listening to his inner voice of reason, this does not bother him much. If you have ever wondered why modern tyrannies always feel the need to put their horrific enforcements in writing first, THIS is why. Oligarchs understand that the law provides the slave with a means to rationalize his participation in the crimes of the state. After all, if some gut-bloated bloodthirsty elitists in government etch their mad inbred ramblings into law, then we have no choice but to follow them, right?