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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