Balkinization  

Monday, April 02, 2012

Don't Throw Rocks at the Tigers

Gerard N. Magliocca

The President made some comments today about the constitutional challenge to the Affordable Care Act that were foolish, at least from the Administration's point of view. What did he say?

"I'm 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."

“I just want to remind conservative commentators that for years what we have heard is 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. Well, this has been a good example. I am pretty confident this court will recognize that and not take that step.”

"That’s not just my opinion. That’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who examined this law even if they’re not particularly sympathetic to this legislation or my presidency.”

Is lecturing the Court while the case is under submission the best way to persuade, say, Justice Kennedy? The same Justice Kennedy who wrote Citizens United and was called out by the President at the State of the Union Address? Sometimes "No comment" is the best answer.

Comments:

And are they really, if they were inclined to value democratically elected majorities over, say, the text of the Constitution, going to ignore what the voters did to that majority at the next available election?

Anyway, as others have observed, at this point they're not trying to influence the court, they're just trying to discredit the Court if it dares rule against them.
 

The President's remarks were probably primarily not to the justices, who personally aren't on pins and needles as to his public announcements, but to the public at large and the press perhaps specifically.

Brett continues to assume the 2010 election was basically some single issue referendum and apparently the Dems retaining control of the Senate doesn't matter much there.

This overly reductionist view is not convincing. As to "daring," I reckon like Lincoln, a candidate for President can think SCOTUS was wrong and say so. I wonder what a President is allowed to say there that does not "discredit" said Court, but simply notes that in such and such a case they were wrong.
 

SCOTUS can also, value the text of the Constitution AND democratically elected majorities here.

The idea in this system, as currently situated, is that past pieces of legislation don't fall to the wayside because one body of the Congress changes political hands.

The New Deal, e.g., wasn't suddenly discredited or anything when Republicans gained control in the 1940s. Perhaps, SCOTUS can let Congress regulate interstate commerce here, now with Republicans having more power in setting forth the rules.
 

The 2010 election was decided by a small number of Americans. Why would any justice decide to pick that group of Americans over the tens of millions who voted for Obama in 2008? The argument that the people did not want the ACA is based upon politics not law. As in 1936, if the ACA is overturned and then Obama wins in yet another landslide, will they then put a stitch in time to save nine and reverse themselves if it is then called a tax?
 

He was laying groundwork to get some good out of SCOTUS killing the ACA.

The bad news: pure politics.

The good news: uses the right wing's dumbass talking points against them.

I seriously doubt he was lecturing the Court, daring the Court, or addressing the Court in any way. He was addressing the public, framing one possible outcome.
 

yep, here we go starting to frame the court's legitimacy.

http://balkin.blogspot.com/2012/03/legitimacy-of-supreme-court-or-as.html
 

Gerard seems to be of the view that the Constitution provides for judicial supremacy over the Executive and Congress despite the fact that there is no such specific provision in the Constitution. VC is citing Gerard's post for some sort of "proof" that Obama should remain silent on the subject of ACA. At least Obama doesn't have to grow a pair.
 

Was Obama in moot court at Harvard?

This is basic stuff. You do not argue with and certainly do not insult appellate judges before whom you are making your case.

To follow up publicly attacking the Court by misrepresenting the Citizens United decision during the SOTU with this stunt chiding the Court that legal experts see oupholding Obamacare as a slam dunk is just beyond arrogant and stupid.

Obama better hope that Kennedy has already caved and voted to uphold The individual mandate last Friday and is not watching the news tonight.
 

I think it is rather telling that Magliocca refers to those who may think they are our rulers on the Supreme Court as "tigers." You had better not mess with them, because these dangerous animals may lash out!

The idea that conservative members of the Supreme Court are going to make their decision based on retaliation against the President for daring to speak to the American people about the workings of our democracy is in strong tension with the idea that the Supreme Court is about to make a legal rather than a political and ideological decision.
 

Shaq,

Attacking an opinion after it comes out is fine and dandy. Attacking the Court before they make a decision is ham-handed. Even FDR didn't do that openly.
 

Well, now that I think about it my FDR point is wrong. But I'm sticking with the rest of the thought. I think that the Administration's strategy to play chicken with the Court isn't working.
 

You're assuming that the president is more interested in getting the ACA upheld than in getting reelected. I'd assume the opposite.
 

It's a fair point. Was the SG in on this plan to throw the case? :)
 

"As in 1936, if the ACA is overturned and then Obama wins in yet another landslide, will they then put a stitch in time to save nine"
Are you suggesting that Obama will attempt to pack the court?

Note that you'd need a legislative landslide, not just an executive one, to make that happen.
 

Nah, you could manage packing the Court quite handily by dropping enough "Will no one rid me of this turbulent priest?" style remarks, and waiting for one of your more nutso supporters to provide you with the open spots you need. At that point, you've got your majority on the Court even if the Senate switches hands, and never confirms another of your nominees.

Would Obama do that deliberately? I don't know. But I'm not sure what he'd do differently if he had that in mind.
 

The New Yorker online features Amy Davidson's "Ten Steel Workers, Five Justices, and the Commerce Clause" that closes with this:

"Part of the majesty of the Constitution is that the firmament the framers imagined includes fixed and moving points, all brilliant. The Court is not a constitutional-reckoning machine (the arguments of originalists that it is, or ought to be, is belied by their own often politicized decisions). Terms like interstate commerce conjure up different worlds in different centuries. When F.D.R. began his first term, thirteen million Americans, a quarter of the workforce, were unemployed; today, almost fifty million Americans don’t have health insurance. Both numbers only partially quantify the distorting effect that these two crises have had on our economy. Both also speak to the truth that individuals are not isolated, that there are mutual exchanges and obligations that we can ignore but not dissipate. One of the many almost sarcastic notes in the minority decision in Jones & Laughlin is that its relation to interstate commerce is “'ndirect and remote in the highest degree,' because only 'ten men out of 10,000 were discharged. How much do ten steelworkers matter to the rest of us? A great deal."

http://www.newyorker.com/online/blogs/comment/2012/03/ten-steelworkers-five-justices-and-the-commerce-clause.html#ixzz1qyQGpl00

Davidson compares FDR's efforts to get America out of the Great Depression (courtesy of Hoover, et al GOPers) and Obama's efforts to get America out of the Great Recession (courtesy of Bush/Cheney GOPers).

Gerard, was the President discourteous? Did he pick on any specific lines of questioning/comments of the Justices during orals? You seem to follow our yodeler's logic: If Obama were to say nothing, then he's a wimp or concedes defeat; if Obama were to speak up, then he's ham-handed. I'll stick with no need for Obama to grow a pair.
 

This comment has been removed by the author.
 

"This is basic stuff. You do not argue with and certainly do not insult appellate judges before whom you are making your case."

Bart apparently is under the impression that Obama is an attorney for the Department of Justice.

Obama is in fact the President of the United States, the head of a branch of government parallel to the Supreme Court. Basic stuff.
 

Right, that's basic: Lawyers don't insult the judge, that's their client's job.

You really think that response made sense?
 

Presumably Justice Roberts will begin his opinion citing the well-known precedent of "you hurt my fee-fees" in support of striking down the mandate.
 

Making sense? Like your "nutso supporter" remark? Stick with wrong-minded constitutional analysis.
 

This comment has been removed by the author.
 

Shag:

Apart from the fact that Obamacare is not a Keynesian "stimulus" program like the New Deal, it is not wise to make the comparison between the results of the New Deal and Obamanomics given that these were the only two recovery-less L=shaped recessions in U.S. history.
 

Our yodeler knows not Keynesian stimulus from his elbow (to be polite). While he may be an expert on DUI (being polite again), note that he ignores what (and who - Hoover et al) brought about the Great Depression of 1929 - that FDR inherited in 1933!) and what (and who - Bush/Cheney) brought about the Great Recession of 2008. Our yodeler was quick to blame Obama from day one for the actions of Bush/Cheney. Independent evaluators point to the increasing deficits IF ACA is rejected by the Court. So in some sense ACA offers limited stimulus, assuming that better health care may be beneficial to Americans, including financially.

There was eventually recovery from the Great Depression, as Krugman has pointed out, with government stimulus brought about by WW II. War may not be a desirable form of stimulus for either a depression or a recession. Let's hope the neocons' desires regarding Iran will not be needed to continue current improvements in the economy. (Most likely the neocons' course would worsen the economy at the present time.) Of course, Congress could provide Keynesian stimulus short of war, but there is the matter of the GOP House majority and the Senate's 60 vote rule that thwarts such, especially during this presidential election year.

But the comparison that was made was with respect to the Court during the New Deal and currently in right wing efforts to thwart progress by a Democratic President, then with labor and now with health care. Perhaps the 5 GOP Justices, if they continue in velcro fashion with ACA, just might provide the political stimulus for Obama's reelection.
 

Shag:

You really do not want to argue economics with me. I minored in the subject in university, my book shelves are filled with economics tracts from Hayek to Marx, and my first book broke down modern U.S. economic theory.

A few inconvenient facts for your consumption:

> Hoover was a progressive whose imposition of the Smoot Hawley tariff and a millionaire's tax, in part to fund public works projects, caused and deepened the Great Depression.

> The country remained in Depression throughout the New Deal. This was America's first recovery-less L-shaped recession.

> The obscene notion that war creates economic growth by creating demand from extremely hazardous military make-work and destroying billions of dollars in war materials has no basis in reality. http://www.weeklystandard.com/articles/ultimate-stimulus_592145.html

> In reality, the private economy did not recover from the Great Depression until the late 40s when we freed international trade and leashed the union movement.

> The Clinton administration with some help from the GOP directed and subsidized the creation of the subprime home mortgage market, whose later mass default caused the Great Recession. Bush had next to nothing to do with this.

> Obama's $4 trillion borrowing and spending spree did nothing to "stimulate" the economy. The end result was America's second recovery-less L-shaped recession, which produced less growth than the standard business cycle recovery which Obama's economic team used as a comparison in its January 2009 white paper selling the "stimulus."

Keynesianism is nothing more than an excuse to expand the progressive state during recessions and has been an abject failure every single time it was tried.
 

You really do not want to argue economics with me. I minored in the subject in university, my book shelves are filled with economics tracts from Hayek to Marx, and my first book broke down modern U.S. economic theory.

Actually, I think he does. If you think Obama is a socialist, a lot of trees died in vain.
 

Justices just serve to diminish the credibility of the Court as an institution when they engage in the conceit that they can identify the true meaning of the Constitution by magically divining the intent of long-dead Framers while devaluing the collective wisdom of more than 200 years of case law interpreting the document. If the ACA is overturned 5-4 and the decision is widely viewed as nothing more than result-oriented judicial fiat, don't blame the President.
 

It seems that minoring in economics may lead to majoring in DUI, the economy of DUI perhaps being more liquid (at least in CO) than the dry, intellectual social science oft referred to as the dismal science (which may lead one to drink). No, I won't waste my time arguing with our yodeler on economics and merely state that he is full of crapola on economics.

Once again our yodeler has ignored the comparison referred to in my first and second comment regarding the Court in the New Deal and currently.

By the Bybee [expletives deleted], our yodeler's economics library, which runs from "Hayek to Marx" (going backwards?), needs modernization.
 

So lets look at this logically. From what I understand, Obama’s remarks were not off the cuff, but were something that he prepared in advance. If that is so, there must have been an intended audience, either the Court, the public or both.

Was it the Court? The justices took their initial vote last week, which means they are tentatively committed to either upholding or striking down the law. If they are tentatively committed to upholding it, it seems to me that it would be rather dangerous to make these remarks because (1) it would anger those conservative justices (presumably Kennedy and/or Roberts) who are leaning toward upholding it and (2) if those justices continue to vote to uphold the law, it makes them look like they succumbed to political pressure. If the justices are leaning in the opposite direction, on the other hand, the remarks might cause some to re-assess, although this seems like a long-shot.

With regard to the public, the remarks may lay the foundation for a political backlash if the Court rules against Obamacare. One might think that the administration would be better advised to wait to see how the case comes out before going down this road, but I can see the argument that the public is being conditioned to expect an adverse ruling so a backlash might not materialize unless the administration gets its marker out earlier.

Which leads me to conclude that (1) the intended audience is the public, not the Court and/or (2) the administration has an inkling that the decision will not go its way.
 

I make the same inference, for pretty much the same reasons. This was for public consumption.

Was it wise? Strategic? Measured? How the hell should I know?

But it makes no sense to suppose he was daring the Supremes in some way.
 

We can debate the comments but "rather dangerous" is a bit much.

The administration and surrogates repeatedly have voiced that the law is a constitutional no brainer and that those against it there are making cruddy arguments. That certain opponents look a bit hypocritical. etc.

Suddenly, this message is "rather dangerous" and will have negative political effects if the Court rules against the law. I don't think some sort of "no comment" would do much either way there.

I think it was for public consumption and it was a hedging mechanism. It again simply reaffirms what he and his surrogates have been saying for some time.

It is campaign season so it is a time to be combative. That factors in too. No path taken is w/o some difficulty & the likely affect of his comments are limited all things considered either way.
 

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