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
InAtl
April 2nd, 2012
6:21 pm
RE: MarkV: InAtl @ 6:00 pm
If you lack comprehension skills, do not complain to me.
Yeah, it must be my pesky comprehension skills. Too funny. Sadly for you though, lots of other very bright posters have made the same observation as I.
Rafe Hollister
April 2nd, 2012
6:22 pm
Unprecedented is a fine word, just used in the wrong place by an unprecedented failure.
Rafe Hollister
April 2nd, 2012
6:24 pm
InAtl, just step over it or go around it. As you note the overwhelming majority of us do not have “those comprehension skills” either.
MarkV
April 2nd, 2012
6:30 pm
Kyle Wingfield @6:12 pm
@4:50 pm Obama: “I am confident this will be upheld because it should be upheld.”
@5:11 pm “The premise here is that it should be upheld: Therefore, Obama says, it will be upheld. But that initial premise is an assumption on his part.”
You left out the words “I am confident …” Instead, you wrote that Obama said “it will be upheld” because “it should be upheld.” He never said “it will be upheld” as an assertion, he said it as a matter of what he expected, what he was confident of.
Big difference. I can always say “I am confident that Braves will win, because [they are so good] they should win.” No circular logic. But it would be a circular logic if I only said “Braves will win because they should win.” Obama was merely saying, I am confident that the law will be upheld, [because it is a good law] and therefore it should be upheld.
MarkV
April 2nd, 2012
6:35 pm
InAtl @ 6:21 pm
Yeah, those “lots of other very bright posters,” in your opinion. Why don’t you question a specific argument in a specific post and present your argument, instead of whining about my incoherent posts?
Kyle Wingfield
April 2nd, 2012
6:48 pm
MarkV: And you don’t see an assumption in the “[because it is a good law]” part?
I really couldn’t care less about arguing this point, so you’ll get the last word on it.
saywhat?
April 2nd, 2012
6:49 pm
MarkV @ 6:30 is exactly right.
Samantha
April 2nd, 2012
6:53 pm
Saying that a law is unconstitutional becasue it overreaches the power of the state under the constitution is neither unprecedented or judical activism. If overtuning a law were judical activism, per se, then what function would the court perform? Indeed what would it’s constitutional mandate be? Judicial activism is when a ruling is passed to create a future state in line with the justice’s personal value and hopes rather than decide what laws are constitutional and which are not.
Of course Obama is engaging in presidental thuggery, trying to bully the court and preparing his troops to blame the court for his own arrogant overreach of power. Of course the other possiblity is that Obama is just incredibly ignorant nd wilfully stupid but I don’t really think that’s the case.
The frame of reference is FDR who when he did not get his way, tried to pack the court with extra justices. Contention between the executive branch and the legislative branch is hardly unprecedented.
saywhat?
April 2nd, 2012
7:03 pm
The current Supreme Court is one example of how the damage done to this country by George W Bush will continue far beyond his reign of error. It may be 20 years or longer before the damage stops, let alone is repaired.
md
April 2nd, 2012
7:03 pm
First he lectured the justices in his sotu, now he does it again……I’m guessing had they planned to not over turn it, they surely will now just to put him in his place. He seems to forget they are an equal branch of gov’t.
saywhat?
April 2nd, 2012
7:08 pm
To quote Jay Bookman -
“Oh please. If I had a nickel for every time some conservative pol has condemned the court for Roe v. Wade or any number of other decisions, I could buy and sell the MegaMillion winners. But now that Obama dares to say a word, it’s become a major constitutional threat?
You folks are so damn transparent”
Martin Williams
April 2nd, 2012
7:10 pm
This is what the GOP does best and that is wasting tax payers money to defend things like the health care law. It is not realy a true waste though since the money goes into the pockets of GOP lawyers. Your all remember over 60 million dollars was spent by an independent prosecutor for the impeachment of then president Bill Clinton. Over a dozen GOP lawyers again pocketed that money. We tax payers and voters are just plain stupid and very dumm and politicians know that. The politicians in this country have the very best health care protection and other very best benefits to buth. These benefits continue 100% even when they screw up and resigned from the Congress. You all continue voting these thieves to power.
Linda
April 2nd, 2012
7:12 pm
During the Supreme Court hearings, Justice Scalia said, “[I]f we struck down nothing in this legislation but the … ‘Cornhusker Kickback,’ OK? We find that to violate the constitutional proscription of venality, OK?” Scalia said, eliciting chuckles from the audience. “When we strike [the 'Cornhusker Kickback'] down, it’s clear that Congress would not have passed [the bill] without that. It was the means of getting the last necessary vote in the Senate. “And you are telling us that the whole statute would fall because the ‘Cornhusker Kickback’ is bad? That can’t be right,” he said.
The Cornhusker kickback was removed but Nelson was the last Dem. holdout who caved, reportedly because of threats from the Obama Adm. to close Offutt Air Force Base, former home of the Strategic Air Command.
Venality is a vice associated with being bribeable or of selling one’s services or power, especially when one should act justly instead. In its most recognizable form, dishonesty, venality causes people to lie and steal for their personal advantage, and is related to bribery and nepotism, among other vices.
Obama claimed today that Obamacare was passed by a “…strong majority of a democratically elected Congress.” Really? No Republicans voted for it. One-fourth (15) of the Democratic senators who voted for it were bribed, including those from Neb., LA, Mich., Conn., Ver., PA, NY, Fla., OR, Mont., ND, SD, Utah, Wy. & Iowa. The other 45 senators who authorized the govt. take-over of 1/6 of our economy were too stupid to get their own cookies.
This bill should be renamed Obamacare for Bribery & Stupidity (OBS) & should be struck down for its combined support by venality & stupidity.
md
April 2nd, 2012
7:12 pm
“Oh great Swami, what happens if the law is upheld?”
The States pass the pain to the peons……….as the administrative costs to implement and run the program are not supplemented by the feds. Those States that require balanced budgets will have to cut even more (education again?) and those other States that don’t require balanced budgets go deeper in the red……can you say CA. They’ll be looking a lot like Greece with all that red ink.
But, everybody will have a shiny new insurance card to flash on their admittance to the bankrupt State run hospitals………….
md
April 2nd, 2012
7:16 pm
“To quote Jay Bookman”
If that is all you have, I’d forgo the quote if I were you……….his credibility is zelch.
Linda
April 2nd, 2012
7:25 pm
Wade@5:09, I shared your post with my husband. Great insight. More, please.
Finn McCool (Class Warfare = Stopping Rich People from TAKING MORE of OUR MONEY)
April 2nd, 2012
7:32 pm
Kyle wrote, and I break it down here: “Do you believe losing a tax subsidy (ethanol), because you choose to stop the behavior being subsidized (growing corn), is equivalent to being fined because you never chose to behave that way in the first place?”
See, Kyle, wtf?
md
April 2nd, 2012
7:37 pm
A matter of semantics, but one is allowed to own a car without insurance……but one can not drive that car legally without insurance.
Linda
April 2nd, 2012
7:43 pm
Obama referred to Obamacare as being passed by a “strong majority of a democratically elected congress.” As I wrote above, that was indeed a stretch. Several of those Democratic senators who voted for Obamacare were voted out in 2010. Many are now taking “early” retirement. Why? Others are behind in the polls against Republicans.
How many of those senators Obama referred to today are still around? How many will still be around after the Nov., 2012 elections?
Answer: few.
md
April 2nd, 2012
7:47 pm
Worth posting these quotes again considering we are talking about another Obama quote:
“You know, the Founders designed this system, as frustrating it is, to make sure that there’s a broad consensus before the country moves forward,”
and
“And what I worry about would be you essentially have still two chambers — the House and the Senate — but you have simply majoritarian absolute power on either side, and that’s just not what the founders intended,”
The man has no ammunition against Romney when it comes to flip flopping………
ragnar danneskjold
April 2nd, 2012
7:52 pm
“Judicial activism” is when a court crafts a law out of whole cloth, as the bizarre “busing” rulings of the early 1970s or a Roe v Wade where the “penumbra” of the Constitution added to the plain language text. “Judicial activism” would also describe those instances where justices look to foreign law to justify an ideological bent.
Judicial restraint is irrelevant in determining the Constitutionality of acts of the Congress or of a legislature, e.g., Brown v Board of Education.
More to the point, the courts do not have armies of bureaucrats nor bully pulpits – their only power derives from the quality of their rulings. Where they rule badly, such as a Roe v Wade or “Kelo,” they are mocked and despised, and devious politicians (a redundancy, to be sure) make political capital from attacking the courts. On the other hand, strong but sound rulings such as Citizens United (saying the people do not lose the right to free speech merely by binding together as unions, non-profits, or corporations) are easily understood by the common man. ObamaCare seemingly turns on whether merely breathing is “Commerce” thus allowing the Congress to compel all to purchase a product favored by politicians.
If you want to improve the quality of the performance of courts at all levels, enact a Constitutional change limiting judges to a 10-year term. I observe that there is little improvement in any court after so long, but am undesirable arrogance does arise from a lifetime appointment. Such a change as I propose would probably not be necessary for those courts created by Congress (Appellate Courts, District Courts, Bankruptcy Courts) but a Constitutional change would be necessary for the Supreme Court.
Jack
April 2nd, 2012
8:08 pm
The scary part is that Obama believes the stuff that comes out his mouth.
ragnar danneskjold
April 2nd, 2012
8:14 pm
Many interesting comments above, good thread.
Hot rumor: Obama floated his comments because the result was leaked to him. No basis, but the rumor is all over the internet.
Some pundits above raise the state insurance requirements vs the ObamaCare Federal requirement. The long tradition was that the central government lacked the “police” power, and that such personal interaction with the state is best left at the lowest possible level. FWIW I would abolish the car insurance requirement – see that as a sop to car insurance companies – abolishing all tort liability for any vehicle-related matter except where a criminal sentence is passed.
ragnar danneskjold
April 2nd, 2012
8:16 pm
Hope you all saw the funny line by Mark Styne quoted in today’s WSJ:
Mark Steyn writing March 30 in the Orange County Register:
“What happened to the Eighth Amendment?” sighed Justice Scalia the other day. That’s the bit about cruel and unusual punishment. “You really want us to go through these 2,700 pages? Or do you expect us to give this function to our law clerks?”
He was making a narrow argument about “severability”—about whether the court could junk the “individual mandate” but pick and choose what bits of Obamacare to keep. Yet he was unintentionally making a far more basic point: A 2,700-page law is not a “law” by any civilized understanding of the term. Law rests on the principle of equality before it. When a bill is 2,700 pages, there’s no equality: Instead, there’s a hierarchy of privilege microregulated by an unelected, unaccountable, unconstrained, unknown and unnumbered bureaucracy. It’s not just that the legislators who legislate it don’t know what’s in it, nor that the citizens on the receiving end can ever hope to understand it, but that even the nation’s most eminent judges acknowledge that it is beyond individual human comprehension. A 2,700-page law is, by definition, an affront to self-government.
If the Supreme Court really wished to perform a service, it would declare that henceforth no law can be longer than, say, 27 pages . . .
Linda
April 2nd, 2012
8:18 pm
Liberals, be weary of what you desire. What if the Supreme Court upholds the mandate in Obamacare & a GOP adm. comes into power & rules that every citizen over the age of 18 must own a gun (such as in the city of Kennesaw), will you balk?
Rafe Hollister
April 2nd, 2012
8:19 pm
Ragnar@7:52, well explained!
Jack,
I don’t think he believes all he says; he is always in campaign mode. Campaigning for what he wants you to BELIEVE. He knows very well that he is trying to “fundamentally change” this country into an entitlement society funded by taxing the evil rich.
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
April 2nd, 2012
8:32 pm
The good news for Mr. Romney is that his failure to elicit enthusiasm among women likely has little to do with the way he or his party have handled contraception.
The bad news for Mr. Romney is that his inability to generate much excitement among women appears related to a general inability to generate much excitement among anyone.
That’s what I’m sayin….ZZZZZZZZZZZZZZZZZzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz
Dan
April 2nd, 2012
8:46 pm
Judicial activism would be throwing out part of the law and keeping others THAT would be justices creating law. The courts duty is to rule on cases presented to it. In this case the constitutionality of Obama care, as put forth by 27 states. If the primary portion is deemed unconstitutional, the whole thing should be tossed, to do other wise would be justices “writing law”. The legislative branch consistently packages all types of special interests with their proposals. If they present a steaming pile to SCOTUS, the court needs to kick it back and say do it right. It is not there job to correct the problem. That is the reason for the the 3 branches of government, balance. Usurping that balance is the biggest danger to our way of life.
what
April 2nd, 2012
8:50 pm
I think Ann said all we need to know a wilard. Too much information
Plain_Jane
April 2nd, 2012
8:53 pm
Thank you, Mr. Wingfield; exactly.
If Mr. Obama were ignorant or stupid, we could just bemoan the fact and soldier on. Since he is erudite and intelligent, we must conclude he’s a liar.
dbm
April 2nd, 2012
9:28 pm
Finn McCool
April 2nd, 2012
7:32 pm
In other words, do you believe that losing the ethanol subsidy because you stop growing corn is equivalent to being fined because you never grew corn in the first place? Most people would say that such a fine would be outrageous and clearly not equivalent to losing the subsidy. I don’t know whether you agree. Is this really that difficult to understand? Or perhaps you would like to clarify your comment?
Real Athens
April 2nd, 2012
9:39 pm
Plenty of “liberals” own guns. Democratic administrations have declared war more times than Republicans
Ted
April 2nd, 2012
9:43 pm
What an unbelievable dolt we have for a President. Ted Knight. Thank goodness, he looks the part. He can play himself in the movie version of the disaster film called his first term.
Michael H. Smith
April 2nd, 2012
9:44 pm
I agree obumer doesn’t have a firm grasp Kyle and like the majority that past his obumercare tripe what they too see as “unprecedented” is first the nerve of anyone to challenge what these Marxist a.k.a. Progressives have come to believe is the “UNLIMITED RIGHTS” of the Federal Government, if not unquestionably their every own – Et al Scalia, there is no “unlimited right”.
When Justice Kennedy homed in on “NO LIMITING PRINCIPLE” I knew the conservative’s arguments before the Court were right where we needed them to be. In fact, where they’ve actually been unarguably since the “New Deal”: Which is the reasoning behind the obumer keyword “unprecedented” in the statement you’ve taken to task, Kyle.
What obumer is hoping and as well these crummy so-called Progressives – who are nothing but a bunch of closeted Marxist Socialist – are hoping, is that the Court doesn’t overturn most of the “New Deal” with obumercare when this Court overturns it. And that Kyle, is the unfathomable part intend by obumer’s use of the word “unprecedented” for him and his ilk.
Remembering back to an earlier exchange on your blog when this discussion went to the very core of this “limiting principle” and some liberal socialist asked then that even though the New Deal or parts of the New Deal were unconstitutional wasn’t it worth it, didn’t the means used justify the end goals achieved?
No! Then and now, tomorrow as well my friend. In the commerce clause, as it is so often referred to, is found “a fundamental principle”, actually it is the “”fundamental “operable” principle”" without which the entire constitution becomes a nearly moot point in regards to Federal Powers when it’s LIMITING PRINCIPLE is ignored or negated.
Madison’s federalist paper number 45 makes it very clear, explicitly so, the extent of the federal powers to regulate commerce to only those enumerated powers the rest belongs to the States’ or the people – Et al the tenth amendment.
What is truly unfortunate in all of this, beyond the travesty of proper regulation being turned into what is now fascism by a federal government gone uncontrollably awry, is not a question of the needful things absent redress, it is rather the adherence to the limiting principle and amendment process. Something one would think a professor of constitutional law should not only know and respect but would defend rather than as obumer has chosen to do defeat in an arrogant defiance.
I feel confident obumercare will be rightly overturned and should as rightly well it leaves the Progressive legislation past since Woodrow Wilson constitutionally liable… so be it.
Real Athens
April 2nd, 2012
10:06 pm
What is a “Marxist Socialist” — besides a made up term?
“I feel confident obumercare will be rightly overturned and should as rightly well it leaves the Progressive legislation past since Woodrow Wilson constitutionally liable… so be it.”
Huh?
Dusty
April 2nd, 2012
10:06 pm
Well, this is a good blog subject obviously. Anytime liberals come out like a swarm of vipers to attack Kyle over a clear picture he makes of Obama failings, you know Kyle is presenting the unvarnished truth.
The truth is not what our liberal friends want to hear..Evefy day we learn more.
.An “unprecented” conclusion will occur if Americans do not realize that the president is a poor leader unsuitable and unequiped to make decisions for our country. The evidence is clear.
Real Athens
April 2nd, 2012
10:14 pm
Swarm of vipers? Scary.
Need to work on mixing those metaphors.
Dusty
April 2nd, 2012
10:25 pm
Real Athens 10:14
I mixed a magnificent metaphor of vipers and out crawled a Real Athens.
Back to your homework, child. .
Tealiban Party
April 2nd, 2012
10:26 pm
Kyle – I am still waiting for your article on Mary Brown. Certainly you know Mary Brown — the lead plaintiff in the Obamacare SCOTUS lawsuit. Yes, that Mary Brown who is now declaring bankruptcy, which includes unpaid healthcare bills. Do you like paying for Mary’s healthcare bills Kyle?
http://www.allgov.com/Top_Stories/ViewNews/Lead_Plaintiff_in_Anti_Obamacare_Lawsuit_Now_Bankrupt_with_Unpaid_Medical_Bills_120313
Real Athens
April 2nd, 2012
10:38 pm
All bluster. Literate much?
Lil' Barry Bailout (Unexpectedly Revised Downward)
April 2nd, 2012
10:38 pm
carlosgvv: 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.
———————–
Agree 100%. Obozo should have been focused on fixing the economy and creating jobs instead of wasting a year or two scheming to get his fascist health care power grab jammed through Congress.
Obama's Economy
April 2nd, 2012
10:51 pm
Q1 of 2012 best quarter for stocks since 1998. First quarter stock market performance. (Since Bill Clinton was in office….)
http://financemymoney.com/q1-of-2012-best-quarter-for-stocks-since-1998-first-quarter-stock-market-performance/
Lil' Barry Bailout (Unexpectedly Revised Downward)
April 2nd, 2012
10:56 pm
Too bad only the rich benefit from rising stock prices.
Dusty
April 2nd, 2012
11:00 pm
Obama’s Econony 10:51
Now don’t forget to tell us about the price of gasoline and groceries and the unemployment rate and the foreclosure problem and the national debt. THAT is interesting too.
Dusty
April 2nd, 2012
11:10 pm
Real Athens
Bluster killed Custer and “literate ” is an adjective.
Back to your homework, child.
Real Athens
April 2nd, 2012
11:18 pm
Your price of groceries is influenced by the cost of gasoline. However, under the current administration U.S. oil production has increased for three years running and by more than in any three-year period since 1970. The price of gas still almost doubled during that time.
So, when drilling was down significantly, like in 1999, gas was only $1.25. When it was double that, at the end of Bush’s term, gas was $1.95, and when drilling quadrupled from that level, gas went to $3.72.
That’s what you get for listening to politicians who talk about “supply side economics”. Newt will get $2.50 a gallon – FOR CHINA. Prices are effected by supply AND demand. Supply side looks at one part of the picture. That’s Econ 101. Balance determines the price.
Wouldn’t expect you to know that though. Poor thing.
td
April 2nd, 2012
11:22 pm
Why is it so hard for the libs to understand the basic concept that the Federal government has limited powers under the Constitution? It is clear in every writing of the time but they just keep pushing and insisting that we should become a socialist nation run by the Federal government.
Dallas
April 2nd, 2012
11:24 pm
Mr. President, for clarification … Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint … you know, where the Supreme court DOESN’T read something into the constitution.
Real Athens
April 2nd, 2012
11:25 pm
Dusty:
Always certain, often wrong. Literate is an adjective. You’re right about that. However, look at its third definition “Compare numerate used to words rather than numbers as a means of expression.”
Say it slowly: Lit-er-ate
Wouldn’t expect you to know something you never learned.
Stupidity killed Custer, as it will you if you don’t take off the blinders.
Hillbilly D
April 2nd, 2012
11:26 pm
Prices are effected by supply AND demand.
They’re affected by speculators looking to make a quick buck, too.