This is rather “unprecedented,” to use one of Obama’s favorite words. The court’s question came up in a separate Obamacare case presently before a 3-judge panel of the Appeals Court for the 5th Circuit (which serves Louisiana, Mississippi, and Texas), in which HCR is being challenged by physician-owned hospitals:
The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became “very stern,” the source said, suggesting it wasn’t clear whether the president believes such a right exists…
Judge Smith says the president’s comments suggesting courts lack power to set aside federal laws “have troubled a number of people” and that the suggestion “is not a small matter.”
The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.”
“I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president,” Smith said. “What is the authority is of the federal courts in this regard in terms of judicial review?”
So Obama’s remarks have earned the DOJ an extra homework assignment, and a little wrist slip for Obama.
[NOTE: By the way, all three judges on the panel are Republicans, and Smith is a Reagan appointee.]
In all the brouhaha surrounding Obama’s statements yesterday preemptively criticizing the Supreme Court, these completely unrelated remarks of his passed relatively unnoticed:
Responding to Romney’s campaign trail claims that American influence has declined during the Obama administration and that the president “doesn’t have the same feelings about American exceptionalism that we do,” the president noted that he emerged on the national stage with a speech on the issue at the 2004 Democratic National Convention. More broadly, he said, “my entire career has been a testimony to American exceptionalism.”
For Obama, it all comes down to “me, me, me,” doesn’t it?
And by the way, his speech at the 2004 Democratic Convention started with a long portion about himself and his life story, too. At least he’s consistent. But once he got past his personal story, Obama’s 2004 speech did contain a paean to the blessings of liberty and equal opportunity in America, certainly part of what goes into the idea of American exceptionalism.
As to whether Obama really does have a different understanding of American exceptionalism—or even believes in it at all—in the international sense (which was, after all, the sense to which Romney seemed to be referring), these 2009 remarks are (at least as far as I know) Obama’s fullest statement on the subject.
Here’s the relevant excerpt. It’s Obama’s first sentence that’s usually quoted, but I think it’s fairer (and more interesting) to read the full version:
[Question]: Thank you, Mr. President. In the context of all the multilateral activity that’s been going on this week — the G20, here at NATO — and your evident enthusiasm for multilateral frameworks, to work through multilateral frameworks, could I ask you whether you subscribe, as many of your predecessors have, to the school of American exceptionalism that sees America as uniquely qualified to lead the world, or do you have a slightly different philosophy? And if so, would you be able to elaborate on it?
[Answer] PRESIDENT OBAMA: I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism. I’m enormously proud of my country and its role and history in the world. If you think about the site of this summit and what it means, I don’t think America should be embarrassed to see evidence of the sacrifices of our troops, the enormous amount of resources that were put into Europe postwar, and our leadership in crafting an Alliance that ultimately led to the unification of Europe. We should take great pride in that.
And if you think of our current situation, the United States remains the largest economy in the world. We have unmatched military capability. And I think that we have a core set of values that are enshrined in our Constitution, in our body of law, in our democratic practices, in our belief in free speech and equality, that, though imperfect, are exceptional.
Now, the fact that I am very proud of my country and I think that we’ve got a whole lot to offer the world does not lessen my interest in recognizing the value and wonderful qualities of other countries, or recognizing that we’re not always going to be right, or that other people may have good ideas, or that in order for us to work collectively, all parties have to compromise and that includes us.
And so I see no contradiction between believing that America has a continued extraordinary role in leading the world towards peace and prosperity and recognizing that that leadership is incumbent, depends on, our ability to create partnerships because we create partnerships because we can’t solve these problems alone.
As usual, Obama straddles the line. Whether you believe him or not, he does pay at least lip service to the idea of American exceptionalism when he says, “And if you think of our current situation, the United States remains the largest economy in the world. We have unmatched military capability. And I think that we have a core set of values that are enshrined in our Constitution, in our body of law, in our democratic practices, in our belief in free speech and equality, that, though imperfect, are exceptional.” It may not be Reagan’s shining city on a hill—in fact, it’s not Reagan’s shining city on a hill—but it’s not a complete rejection of the idea of American exceptionalism, either.
Of course, the statement of Obama’s also contains many qualifications about the importance of other countries and working with them, and how the American notion of American exceptionalism isn’t so exceptional (“the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism”)—a sort of exceptionalist relativism. So Romney’s remarks may indeed be correct, that Obama “doesn’t have the same feelings” about American exceptionalism that “we do”—especially if the “we” involved is “Republicans.”
By the way, I think Obama’s two choices of other nations that believe in their own exceptionalism was interesting. Both Britain and Greece were exceptional in the past, but no longer. Greece was the ancient cradle of democracy and Britain the more recent cradle of liberty, from which some of our ideas have come. So one wonders if Obama also sees us as a country whose exceptional days are starting to be over, just as Romney suggested he does.
And now it seems quite possible that Mirlande Wilson was not evena lottery winner, much less the lottery winner:
The New York Post reported that a Maryland McDonald’s employee, Mirlande Wilson, 37, is claiming to be the winner and that a fight is brewing between her and her co-workers who allege the ticket was purchased in an office pool.
But Carole Everett, director of communications for the Maryland lottery, told ABCNews.com that there is “no indication” that the story is true.
“Everyone says they know [the winner] is their cousin, mother, friend, guy up the street or guy who mows the lawn,” Everett said. “But the proof has to be in front of us.”
Everett said she is suspicious of Wilson’s story and said that no one has officially come forward yet.
“There’s nothing to substantiate anything,” Everett said. “It’s probably not this person.”
Wilson did not respond to requests for comment from ABCNews.com.
If Wilson is a hoaxer, I wonder how she thought she could pull this off and what her motivation was. Is the 15 minutes of fame reward enough?
And what’s going on with the journalistic standards (no oxymoron intended) of the NY Post?
President Obama must have really overstepped yesterday when he warned the Supreme Court justices against ruling Obamacare unconstitutional. How do I know? WaPo columnist Ruth Marcus is criticizing him for his remarks.
What caused her to take this enormous step, despite the fact that she favors Obamacare and the individual mandate, thinks both are clearly constitutional, and believes that “it would look like a political act to have the five Republican-appointed justices voting to strike down the law and the four Democratic appointees voting to uphold it”? This is what sparked the stirring of unease in her, and caused the headline writer to characterize Obama’s words as “unsettling”:
And yet, Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”…
…[T]he president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.
Marcus’s words “stopped me cold” stopped me cold. Something about this incident has grabbed her attention in a big way.
Dare I hope that this is the beginning of a “change” experience for her? Probably not; almost certainly not (especially since she spends the last paragraph of her column railing against conservatives who denounce judicial activism). But note that she refuses to hew to the near-universal party line that the conservative justices are just political tools concerned with stupid and/or trifling and/or irrelevant and/or crazy questions:
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.
I don’t know whether Marcus is alone among Obamacare supporters in denouncing the president’s remarks in such relatively strong language. I haven’t seen anyone else among her peers doing the same, but I can’t say I’ve been doing extensive reading on the left to find them. Anyone out there who’s discovered a similar article from an Obamacare supporter condemning his remarks?
[NOTE: And if anyone’s planning to start the old “Obama wasn’t a law professor, he was a law lecturer” routine, I refer them to this, which is the official U. of Chicago statement on the matter. Obama was certainly not a tenure-track professor, but the university itself considered him entitled to the title “professor.”]
Obama warns the Supremes about overturning HCR [emphasis mine]:
“Ultimately I am 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,” Obama told reporters today while speaking with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon.
Excuse me, but: WTF???
I suppose it was indeed “passed.” And by a “majority.” And I guess you could stretch the usual English usage of the word “strong” as it relates to majorities (it ordinarily means the same as “large”) and say that this majority was “strong” in that it fits definitions number 6, 9, 10, 12, 13, and 14 here. Let’s take a look:
6. Capable of the effective exercise of authority…
9. Not easily upset; resistant to harmful or unpleasant influences
10. Having force or rapidity of motion…
12. Extreme; drastic
13. Having force of conviction or feeling; uncompromising
14. Intense in degree or quality
And Glenn Reynolds has a question, and a suggestion that probably won’t be taken up:
…[H]ow will Obama’s feminist supporters feel, given that those all-important abortion and birth-control decisions also came from an “unelected” Supreme Court?
And if I were a Republican member of Congress I’d immediately introduce a proposed Constitutional amendment to elect all future Supreme Court justices in a national vote, with no input from the President. Just for fun . . . .]
So much praise has been heaped on Paul Clement, lawyer for the Obamacare opposition, that it made me wonder about him—just who he was and what he was doing before this particular case came his way.
Clement’s got a lengthy history of lawyering for causes (sometimes unpopular) mostly on the right, especially at the appelate level. And for those of you who stayed home in 2008 rather than vote for John McCain, please note that Clement might be on the Supreme Court right now rather than either Sotomayor or Kagan (pick one) if McCain had won in 2008.
Clement has been a clerk for Justice Scalia, a professor at Georgetown Law School, solicitor general under Bush II, and has “argued more cases before the Supreme Court since 2000 than any other lawyer” (count ’em, 53), including quite a few involving Bush’s war on terrorism.
Is it any wonder Clement did such a bang-up job for the plaintiffs in the HCR case?
Obamacare’s lawyer Donald Verrilli, who’s been widely excoriated for a very sub-par performance, isn’t even close to Clement in the amount of SCOTUS experience he’s had, although his record would be good compared to almost anyone else.
Pundits on the left were not at all pleased with Verrilli’s performance. Here, for example, is Adam Serwer in Mother Jones:
Justice Samuel Alito asked the same question later. “Could you just””before you move on, could you express your limiting principle as succinctly as you possibly can?” Verrilli turned to precedent again. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.
The months leading up to the arguments made it clear that the government would face this obvious question. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything””(say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him lifelines, all of which a flailing Verrilli failed to grasp.
Note that Serwer does not mention what explanation would have sufficed—maybe because there isn’t one? And if Clement and company quoted the Federalist Papers and the Founding Fathers and the Verrilli et al didn’t, perhaps it was because there is nothing in the Federalist Papers that would have bolstered their case? Whatever the speculation has been on the reason for Verrilli’s extremely subpar performance, maybe—just maybe—a leading cause is that the case for the constitutionality of Obamacare is an especially difficult one to make.
So may people on the left are accustomed to thinking of the law and history as elastic—a penumbra can be found for anything they want to have happen, because their hearts are pure and their intentions are good—that we can hardly blame them for thinking it is Verrilli’s fault that he couldn’t pull a justification out of a Founding Father hat.
As Serwer points out, the liberal justices tried to help Verrilli out with some hints at arguments he might make, such as when Ginsburg said, “I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.” But it’s not exactly the Federalist Papers, is it?
And by the way, I stick to what I said in an earlier post on the hearings: none of this means we know how the Court (that is to say, Justice Kennedy) will ultimately rule. Oral arguments are the tip of a large iceberg on which a Supreme Court decision rests. Most of the justices will find a way to get where they want to go, and it won’t depend on Verrilli’s ability to argue the case or not.
[NOTE: After I wrote this, I saw that Glenn Reynolds of Instapundit has an article in the Washington Examiner that says much what I say about Verrilli’s problems articulating the defense of Obamacare—only Reynolds says it better. Here’s an excerpt, but please read the whole thing:
There are always arguments about the precise scope of delegated powers, and such arguments have regularly come before the Supreme Court. But it is one thing to argue about the precise extent of limits to enumerated power, and it is another thing entirely to deny their existence.
The last time that happened in front of the Supreme Court was in the 1995 case of United States v. Lopez, where Bill Clinton’s Solicitor General Drew S. Days III was caught short by questions from the bench in much the same fashion that Obama’s Verrilli was caught last week. In Lopez, the government wanted to argue that possession of a firearm near a school could be regulated as interstate commerce, because guns in school might lead to violence, which would lead to worse education, which would lead to dumber graduates, which would lead to a less productive national economy, which would mean less interstate commerce.
If that argument were accepted, the justices asked, what possible limit could there be to federal power under the Commerce Clause? Days couldn’t come up with one, and the government lost the case. It was not acceptable, the majority opinion said, to “pile inference upon inference” in order to extend federal power so far beyond its intended limits. “To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.”
But Days’ argument was straightforward compared with the government’s argument in the Obamacare case…]
The meme du jour is that women are flocking to Obama, based on a new USA Today/Gallup poll in the swing states showing Romney’s support among women there has dropped precipitously.
Polls at this point are almost ludicrously unimportant, except to show two things: (1) shifting trends of the moment; and (2) how the media and pollsters operate.
I can’t find any link to the actual stats for the poll; just the article on it (if you can provide a link I’d appreciate it). But reading between the lines I note a couple of things. The first is that there’s no breakdown of results swing state by swing state, so we don’t know if the changes mentioned are across the board in all the swing states or a skewed by just a couple. Nor do we know if some states were over- or uner-represented, and if so which ones.
The second is this, and it’s a whopper:
While women typically are more likely to identify themselves as Democrats than men are, that difference widens to a chasm in the USA TODAY poll. By 41%-24%, women call themselves Democrats; men by 27%-25% say they’re Republicans.
So here we have a poll in which, among women, self-professed Democrats outnumber Republicans by 17 points (we can imagine that the other 35% of the women are Independents). In that same poll, Obama is outdoing Romney by 14 points. Hmmm. Sounds like Romney is pulling in some of the Democratic women and at least half of the Independents, and Obama isn’t getting any of the Republican women.
And how does this breakdown of women by party affiliation compare to that of previous USAToday/Gallup polls on the same subject? Darned if I can find the answer, and I’ve tried (maybe you can).
Oh, and one other thing: the article does mention that the number of people questioned in the poll was 933 registered voters, and the number of swing states involved was 12. That works out to approximately 78 people sampled per state, and my guess is that about half of them would be men. So this big female shift is based on a poll that sampled an average of 39 women per state???
Romney adviser Eric Fehrnstrom—who has already stated that in the general election Romney can hit a reset button—announced a few more details of the reset plan today. Fehrnstrom said:
They say that Mitt Romney is a man for all seasons. But you ain’t seen nothing yet till you’ve seen what he has in store for the fall campaign. He will be digging deep to shore up his populist roots by living with a simple working family in Flint, Michigan for two weeks, and then on to Toledo, Ohio to do the same.
Next, he is going to temporarily convert to Episcopalianism to show his open-mindedness, because we did some research and found that the greatest number of presidents have been Episcopalian. But Mitt is also open to taking turns at joining other religions for a couple of days at least—especially the Presbyterian Church, which was number two on the list in the number of presidents who’ve claimed allegiance. This in no way will affect his basic Mormon faith, of course.
Let’s not forget Rick Santorum, who’s still in the running and is also making plans. Santorum noted in a candid interview:
Passover begins on the same evening as Good Friday this year, a very unusual and highly symbolic situation. I prophecy that there will be several plagues leading up to that day, symbolizing America’s sinful ways and the release that could come with my election. Let the other candidates go!
Not to be outdone, Newt Gingrich has an announcement of his own. It lacks the sweep and scope of the declarations of the other two, but it’s still pretty dramatic:
Newt claims he’s dumping Callista and taking a new wife.
“This time,” he says, “it’s not my ever-roving eye that has prompted the end of my marriage and the beginning of a new one. It’s you, America. The people have spoken and my market research tells me they don’t like Callista. So with great reluctance I am divorcing her and marrying America’s sweetheart, Sandra Bullock. She just doesn’t know it yet.
“And by the way, it’s all Mitt Romney’s fault.”
When asked by reporters who the “she” was in that last sentence, Gingrich replied, “Both of them.”
Remaining candidate Ron Paul remains uncharacteristically quiet. Some say he’s preparing for his Thursday appearance at Berkeley, in the belly of the beast. Others claim he’s taking some time off to have a long overdue superciliumectomy.
The latest liberal meme is that if the Court rules against Obamacare it will be such an egregious case of conservative judicial activism that the Court will become illegitimate.
My question is: to whom? The 72% of the American public who already consider the mandate unconstitutional?
No, of course not. Those who’ll call the Court illegitimate are the liberal pundits and their followers who originally laughed at the entire idea of Obamacare’s unconstitutionality and cannot believe that any thinking person would disagree with them. And the fact that a Supreme Court decision overruling Obamacare might be very close—like so many controversial decisions in the current Court that is split 4-4-1 ideologically (that “1” being Justice Kennedy, ever the pickle in the middle)—would be further evidence to liberals of this terrible Court illegitimacy.
Unless and until, of course, Obama’s re-election and appointment of a liberal justice makes decisions go reliably 5-4 for the liberal side. Or unless the current decision goes 5-4 for upholding Obamacare. Then the Court will be very very legitimate again.
[NOTE: The entire campaign about this legitimacy business has another goal: to intimidate members of the Court into voting the liberals’ way. After all, who wants to be a bastard?]
In 2008 I wrote a post entitled “Wanting a cool and sexy Prez,” in which I evaluated Obama and previous presidents on the dimension of cool:
Maybe it’s come down to this: choosing a President is now mostly about style rather than substance.
And it now occurs to me that one of the reasons for the widespread antipathy to Romney (even from some of his supporters) is that he’s not cool. Actually, in the obsolete vernacular of my youth, he’s square (or “a square”).
And that’s “square” not as in the Cub Scout Promise* (“be square,” which used to make me giggle as a child), but square as in this clip, where Romney would fit in well in the Pat Boone role, taking lessons in hipness from Maynard G. Krebbs and Kookie:
*I just learned that in the 70s, as part of a general re-organization and supposed modernization of scouting:
The Cub Scout Promise was changed from “to be square” to “to help other people”, as the term square went from meaning honest to rigidly conventional.
