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
Dusty
April 3rd, 2012
11:22 am
hryder @10:39
I like that line: “Our country is to provide life, liberty and the pursuit of happiness, not its attainmnt.”
To reach,achieve or accomplish by continued effort (attainment) is one of the greatest aspects of our freedom. Most Americans realize that having government make all decisions is a loss of liberty..
We do not make good puppets. Therefore we fight mandates that take control of our private lives. It is definitely a loss of independence.
Linda
April 3rd, 2012
11:27 am
Just@9:04, Where have you been for the last 2 1/2 years? Did you not follow the passage of Obamacare? The bribes that I referred to were more brazen & unseenly as never before. Senators bragged about them on national news. State voters were embarrassed.
Here’s a list that includes even more than 15 states.
http://michellemalkin.com/2009/12/21/cash-for-cloture-demcare-bribe-list-pt-ii/
Linda
April 3rd, 2012
11:38 am
Just@9:04, Perhaps you do not know the difference between earmarks & bribery. Legislators specify earmarks on a regular basis: bridges to nowhere, high speed trains to deserts, etc. Bribery, however, is against fed. law & unconstitutional. Ever heard of equality under the law? One state was to receive preferential treatment under Obamacare by receiving a waiver for their Medicaid mandate, which would have been paid for by all the other states.
Article 1, Section 9: `No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.’
Article 4, Section 4: `The United States shall guarantee to every state in this union a Republican form of Government.’
US code Title 18 201, Titled “Bribery of Public Officials and Witnesses,” Section B: `Whoever directly or indirectly, corruptly gives, offers or promises anything of value to any public official (officials is defined as a member of Congress, Delegate or Resident Commissioner) … with intent (a) to influence any official act; or (b) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or colluding, or ally any fraud or make opportunity for the commission of any fraud on the United States.”
http://www.sodahead.com/united-states/come-sue-our-state-please-nebraskans-plead/blog-222719/
Dusty
April 3rd, 2012
11:56 am
Goodbye to all vulgarity.
A pox on its imparity.
We wish for the fair.
For decency, we declare.
Thanks, Kyle, for your celerity.
Obama’s unprecedented definition of ‘unprecedented’ | Kyle Wingfield « JHPPL News and Notes
April 3rd, 2012
12:03 pm
[...] Obama’s unprecedented definition of ‘unprecedented’ | Kyle Wingfield. Share [...]
md
April 3rd, 2012
12:18 pm
“The examples of unpresidential actions you provided did not qualify as such.”
Glad to know there are folks that actually think the President should be weighing in on every issue BEFORE the facts are released (sarc).
That ranks right up there with assume, except it only makes an ass out of him.
Brian Taylor
April 3rd, 2012
1:21 pm
It is not “judicial activism” when judges rule according to the Constitution. That’s a simple fact…it’s kind of their job. People that use this excuse, like Obama is right now, are doing the equivalent of throwing their gun because they’re out of useful bullets. It’s a fight or flight mechanism, and they’re out of any good fight.
George P. Burdell
April 3rd, 2012
1:37 pm
In his speech that just wrapped up, he backed off the comment and put a whole bunch of qualifiers on it, the most important of which is that he now says he meant in reference to “a law about an economic issue”. For all of you defenders, you should go check it out because it is obvious that the point Kyle made in this article is right on point and Obama is now backing off of the stronger language as quickly as he can. All of this is just to set up the point for the campaign, but I’d be very surprised if this doesn’t come up during the debates. He clearly tried to overplay his hand and has been called on it.
EmmVee
April 3rd, 2012
1:38 pm
Definitions:
To conservatives, judicial activism is the courts creating new laws or rights by imagining what the Constitution SHOULD allow, rather than what it DOES allow. Example: Roe v. Wade;
To Obama, judicial activism is the courts upholding what the Constitution actually DOES say or allow, rather than what he and other liberals want to impose on the country.
Lynn Dee
April 3rd, 2012
1:55 pm
From Greg Sargent, regarding Mr. Wingfield’s point:
Quote:
I’m not defending Obama’s claim that overturning the law would be “unprecedented” — it wouldn’t — but as “attacks” go, this is pretty weak sauce. And it’s a bit surprising to hear so much whining about it, given the attacks on “activist” judges conservatives have waged for years. …
As I noted yesterday, I don’t think Obama will ultimately wage a full-blown campaign against the court as part of his reelection strategy even if the law is struck down. Maybe he will in the end, but what Obama said yesterday was not any kind of sign of this. It was not particularly aggressive or even all that remarkable.
Sargent makes a number of other excellent points as well. You can read the whole thing at:
http://www.washingtonpost.com/blogs/plum-line/post/pass-the-smelling-salts-obama-attacked-scotus/2012/04/03/gIQA7VpAtS_blog.html
Linda
April 3rd, 2012
2:02 pm
Obama KNOWS the outcome of the Supreme Court’s initial vote last Friday. The negotiations have begun & votes can change. Obama’s statement yesterday is the liberals’ normal strategy: try to intimidate. It doesn’t work with me & I don’t think it will work with the Supremes.
Maybe Obama should try his other strategy: free contraceptives.
Davz
April 3rd, 2012
2:10 pm
Dear god, there’s a lot of mindless libs babbling on here. Maybe if they took their lips off his backside for a minute to listen to him or look at what he’s “accomplished” these past few years, well… they’d probably be ashamed they ever let anyone call them a liberal.
Kyle Wingfield
April 3rd, 2012
2:25 pm
Lynn Dee: So, an apologist for the administration thinks there’s nothing to see here. I’m shocked — shocked! — this would be the case.
In other news, Obama today tried to qualify his statement from yesterday by referring to laws related to “economic activity.” Which is equally false — the laws in Lopez and Morrison also relied on the Commerce Clause — but telling in that he knows he goofed.
Kyle Wingfield
April 3rd, 2012
2:26 pm
That said, do you think he would have tried to correct himself today if no one had pointed out what he got wrong yesterday?
JDW
April 3rd, 2012
2:33 pm
@Kyle, check out a more reasonable view…
“This would be extraordinary. It would mark the first time in almost 80 years that the court invalidated such a significant federal law as exceeding Congress’ enumerated powers. It would also be the first time since the 1930s that it used the unconstitutionality of a law’s single provision to strike down a hugely important law in its entirety.”
http://www.cnn.com/2012/04/03/opinion/joondeph-supreme-court-risk/index.html?hpt=hp_bn7
Why that sounds….well..unprecedented.
Kyle Wingfield
April 3rd, 2012
2:46 pm
JDW: In what sense of the word is something that happened 80 years “unprecedented”??
Also, I note the qualifiers “significant” and “hugely important” for law. Those qualities are, of course, in the eye of the beholder.
Linda
April 3rd, 2012
2:49 pm
The states were states before they were united as the United States. The Federalist Papers were written & published to persuade states, specifically New York, to ratify. The Federalist Papers are used by judges & justices to rule on the constitutionality of laws. The constitution enumerates the powers of the fed. govt. & specifically leaves other powers to the individual states.
Obamacare is the absolute worst nightmare of the founding fathers. Had a law of this magnitude even been dreamed about, the United States would have never been united.
Lynn Dee
April 3rd, 2012
3:11 pm
It’s absurd to think that mandates destroy the “rugged individualism” we so pride ourselves on. More to the point, our touching belief in our rugged individualism is the means by which whose who benefit from our refusal to wear the “yoke of the individual mandate” actually fit us for the yoke we do wear.
And come on: Is there anyone more “ruggedly individual” than a teaparty senior tooling around on his Rascal scooter claiming: “I EARNED my social security benefits so keep yer hands off ‘em!”
Jared
April 3rd, 2012
3:14 pm
How about instead of picking apart the mans diction and making broad claims based off a few words you cover the case and go back to what journalism should be.
shane
April 3rd, 2012
3:20 pm
I for one have negleted from voting until the Congressional offices went up for voting. With too many Democrats in office they couldn’t be stopped when it came time to pass what changes they wanted. As far as Obama’s bs Obama care he can shove it down his throat. Trying to force people to carry insurance, when some cant afford it and then taxing them for not having it is completely UNCONSTITUTIONAL……….. No matter your views on this idiotic president you cant argue the words written in ink from true leaders of America. Please stop your whining about what someone knows to be true and deal with it. This Obama bs should not and i pray will not be law………..
shane
April 3rd, 2012
3:21 pm
My mistake when the Senate offices went up for voting
Isabella Reid
April 3rd, 2012
3:32 pm
Great article, Mr. Wingfield. Apparently, Constitutional Law Prof. Obama has no idea how this stuff works… either that or he will apparently stop at nothing (including outright lying and the intimidation and coercion of the Justices of the Supreme Court) to push through his radical, socialist agenda. It also makes my blood boil that he puts down the Supreme Court for being “unelected” when the only thing unconstitutional here is his presidency. Apparently, the whole point of checks and balances eludes him… or perhaps it infuriates him that he doesn’t get to run the whole show all by his incompetent, Marxist, little self.
judy
April 3rd, 2012
3:50 pm
this man needs the lord to come into his heart and save him ~
George P. Burdell
April 3rd, 2012
4:00 pm
Thank you Kyle. I was trying to make the same point on how he qualified it but you say it in a much more informed and eloquent manner.
Lynn Dee
April 3rd, 2012
5:14 pm
Quote: “Lynn Dee: So, an apologist for the administration thinks there’s nothing to see here. I’m shocked — shocked! — this would be the case.”
Okay, that’s fine. I get it: Libs not welcome. I’ll leave you to your echo chamber, Mr. Wingfield.
Kyle Wingfield
April 3rd, 2012
5:23 pm
Lynn Dee: So if I argue back, that means you’re “not welcome”? Suit yourself.
Lynn Dee
April 3rd, 2012
5:33 pm
Kyle Wingfield, It was the “apologist for the administration” preemptive bid that suggested to me you weren’t really interested in discussion but just want to show off for the other rightwingers here. Then again, maybe you’ve just been in smartass mode so long, you can’t easily get out of it.
As for the economic activity/inactivity distinction — it’s a bogus distinction. Those who choose not buy insurance are nonetheless still participants in the health care market (even if they’re not in the health care insurance market). Moreover, to the extent they’re free riders in that market, they also have a direct economic impact on the insurance market.
Linda
April 3rd, 2012
5:37 pm
Lynn Dee@5:14, If you observe the comments, you will see that there are more liberals than conservatives on Kyle’s blogs, every day.
Lynn Dee
April 3rd, 2012
5:41 pm
Linda, I’ll have to look more carefully. In this thread, anyway, that didn’t seem to be the case.
JDW
April 3rd, 2012
5:41 pm
@Kyle, well you could certainly make the case that the combination of invalidating a significant law for the first time in 80 years and extending that invalidation beyond the provision in question would be unprecedented. Might not be my choice of words but it works far better than your headline.
“Obama’s unprecedented definition of ‘unprecedented’”
Would you really have us believe that Obama is the first politician to possibly misuse the word “unprecedented”? That’s what your headline means taken literally.
Seems to me that the more the economy improves and the more the polls swing to the side of the President the more vitriolic and unsupportable your headlines become:
“Obama’s unprecedented definition of ‘unprecedented’ ”
“Obama to Russian leader: I’ll cave after I’m re-elected”
“Ryan’s new budget plan points the way to saner fiscal future ”
“Obamacare’s costs: The hits just keep on coming”
You keep this up and you will look like Yosemite Sam by November.
Linda
April 3rd, 2012
5:47 pm
Lynn Dee@5:33, We have hashed out the health care debate on this blog & others up one side & down the other for 3 years. You are wasting your time debating the bill. Americans do not favor the bill any more now than they did 2 years ago. The debate on this thread is Obama’s attempt to sway the decision of the Supreme Court through intimidation.
Kyle Wingfield
April 3rd, 2012
5:47 pm
Lynn Dee: Oh, I switch in and out of smartass mode quite frequently.
And it’s a “bogus distinction” that at least half the justices on the Supreme Court seemed to take very, very seriously in last week’s oral arguments. I won’t predict which way the decision will go, but the justices presented several questions to poke large, gaping holes in arguments by the administration that echo your own.
Lynn Dee
April 3rd, 2012
5:52 pm
I listened to the argument. What do you think were the “gaping holes” in, specifically, the economic activity/inactivity distinction? And yes, I’m ready to trot out Wickard v. Filburn, which I assume you have a response to.
Kyle Wingfield
April 3rd, 2012
5:54 pm
JDW: First, I don’t concede the idea that only insignificant laws have been invalidated during the past 80 years.
Second, I haven’t studied the use of the word “unprecedented” in political speech. But I would be ery surprised if any politician has misused “unprecedented” as grossly as Obama did: to describe a situation that, as a former constitutional law professor, he must very well know has precedent.
JDW
April 3rd, 2012
6:20 pm
@Kyle, believe your own BS if you choose…what I find really interesting is that after decades of wrangling over the issue of health care the Republicans created the idea of an individual mandate to forestall the implementation of single payer.
Now that a Democratic Administration has actually implemented the idea THEY conceived the Republicans are up in arms and ask the SCOTUS to overturn the “abomination”.
If they get their wish guess what…single payer is back…either by new law or the gradual extension of Medicare. Single payer will be the ultimate result.
Kind of short sighted wouldn’t you say? Of course you and I, having both lived overseas and been a part of a single payer plan already know that it works best anyway.
Kyle Wingfield
April 3rd, 2012
6:23 pm
JDW: I wasn’t on the single payer plan in Belgium. We had private insurance through my employer, and survived all the same.
JDW
April 3rd, 2012
6:26 pm
@Kyle, bummer I was on the UK plan and it worked great…cost lots less and if you needed something they didn’t have, which I never did, you just bought it.
Kyle Wingfield
April 3rd, 2012
6:32 pm
Lynn Dee: Briefly, I thought Alito had two good questions about burial services and about young people being forced against their judgment to subsidize insurance companies by paying for care they were unlikely to use. I thought Scalia (I think it was him) was right about the distinction between the health insurance and health care markets, and with his question (specifically talking about buying cars) about why stop at regulating anyone who’s not buying something in any other market. Also, Roberts with his question about requiring the purchase of cellphones.
That’s off the top of my head. Have to go now…maybe we can get into this some more tomorrow.
Lynn Dee
April 3rd, 2012
6:36 pm
@Kyle, those two questions did not deal with activity/inactivity distinction. They dealt with the question of a “limiting principle.” Are you sure you listened to the arguments? You’ll understand if I’m having my doubts.
I’ll discuss the Wickard v. Filburn case in my next post.
Linda
April 3rd, 2012
6:50 pm
What is worse: arguing about Obamacare for another 3 years or changing dirty diapers? I think Kyle is right.
Politicians & diapers need to be changed often, for the same reasons.
Lynn Dee
April 3rd, 2012
6:52 pm
Okay, in Wickard v. Filburn (1942) 317 U.S. 111, “a farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it. … The Court decided that Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce. Thus, Filburn’s production could be regulated by the federal government.”
The above quote is from wikipedia and fine for our purposes.
Now, you might think — hey, the farmer was actively growing wheat, so that’s economic activity. But, his growing of wheat for personal use was not activity IN INTERSTATE COMMERCE. Rather, it was Mr. Filburn’s INACTIVITY — i.e., by not purchasing wheat — that was found to impact interstate commerce, thereby permitting the government to regulate it.
Similarly, in the case of individuals who choose not to purchase health insurance, it’s their participation in the health care market, often as free riders thereby forcing taxpayers to pick up the tab and driving up the cost of health care insurance for those of us who do purchase it, that permits the government to regulate the purchase of insurance – including by imposing a mandate. (I’m sure I don’t have to mention that the reason everyone can be regarded as participating in the health care market is because of hospitals are required by law to provide emergency treatment and because, as part of being human, none of us can really take himself/herself out of the health care market.)
Linda
April 3rd, 2012
7:21 pm
Lynn Dee@ 6:52, I’ve already tried to tell you. The debate is over, including farmer Filburn. The health care bill passed. The American people do not like it. It’s up to the Supreme Court. You are wasting your time.
Also, this thread is pretty much over. Save your lengthy posts when more bloggers are on line.
Real Athens
April 3rd, 2012
7:30 pm
Linda:
What are you? A self appointed moderator? Please stay out of arguments you don’t understand.
Linda
April 3rd, 2012
7:51 pm
Real@7:30, Pitiful, just pitiful. Same old liberal tactics of attempted intimidation that have never & will never work on strong conservative women. Did you forget to call me a racist? I feel your pain & your despair. Poor thing! Are you jealous that I can articulate Obama’s real message & support sites to prove everything I have ever said on this blog? What you are afraid of is voters who UNDERSTAND EXACTLY what Obama is up to.
Real Athens
April 3rd, 2012
8:04 pm
Support sites? Michelle Malkin? You can’t discern from fact and opinion. You ignore anyone who takes you to task.
Articulate? Are you serious?
Linda
April 3rd, 2012
8:42 pm
Real@8:04, Yes, I cited a conservative site, as if liberals don’t cite liberal sites! I could have cited upteen sites that support my claim, both conservative & liberal. The fact of the matter is that what I reported was true. That’s why a justice of the Supreme Court brought it up. I quoted Justice Scalia with his scathing admonishment of “venality” in the passage of Obamacare.
I can’t help but notice that you have not cited any sites that proves me wrong.
I can articulate the conservative message much better than any liberal can to convince Americans that more spending with money that we do not have, to stimulate the economy, to pay for stuff that we do not need, with money borrowed from China, or money printed out of thin air by the Fed. Reserve, that adds to inflation in the grocery stores & at the gas pump, that adds to the deficits & debt, has never & will never work to end Obama’s unprecendented unemployment rates, etc.
Linda
April 3rd, 2012
10:16 pm
Lynn Dee@ 9:58, You comment did not come thru. Anyway, welcome to this blog. Hope your contributions will be appreciated.
Real Athens
April 3rd, 2012
10:49 pm
Give ‘em enough rope.
md
April 3rd, 2012
11:05 pm
activity/inactivity is a bogus argument……the food industry could be substituted yet we don’t require all to buy food. And yes, lack of food leads to the need of healthcare……….
Smg
April 4th, 2012
4:05 am
I have great insurance already, but no matter what nobama says or any court, ill never buy anything i dont want to buy. Id like to see how they actually enforce the law