Kraukthammer: Obama Embarrassed in his Court Argument for Obamacare……Became Dazed

Charles Krauthammer

Opinion Writer

 

Obama v. SCOTUS

at the Washington  Post:

“Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.

In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.

With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.

Obamacare passed the Congress without a single vote from the opposition party — in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.

The president’s preemptive attack on the court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.

Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the commerce clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What, then, is the limiting principle?

Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.

Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, Congress is omnipotent, authorized by the commerce clause to regulate “every human activity from cradle to grave.”

Q.E.D.

Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lock-step support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.

As was Rep. Phil Hare (D-Ill.). As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by the more constitutionally attuned owner of an East Moline pizza shop.

letters@charleskrauthammer.com

More on this debate:

Ruth Marcus: Obama went too far in attack on the court

The Post’s View: President right to revise his comments

Greg Sargent: Pass the smelling salts! Obama `attacked’ SCOTUS!

Jennifer Rubin: The president’s inexcusable attack on the court

Eugene Robinson: Obamacare defeat would make single-payer system inevitable

Walter Dellinger: Five myths about the health-care law

George F. Will: Obamacare’s contract problem

 

George Will: Obama’s “loutish indifference to truth” should influence Romney’s choice for VEEP

WHAT ROMNETY NEEDS IN A RUNNING MATE      by George F. Will    at the Washington Post:

“Barack Obama’s intellectual sociopathy — his often breezy and sometimes loutish indifference to truth — should no longer startle. It should, however, influence Mitt Romney’s choice of a running mate.

In his 2010 State of the Union address, Obama flagrantly misrepresented the Supreme Court’s Citizens United decision, which did not “open the floodgates” for foreign corporations “to spend without limit in our elections” (the law prohibiting foreign money was untouched by Citizens United) and did not reverse “a century of law.” Although Obama is not nearly as well educated as many thought, and he thinks, he surely knows he was absurd when he said last Monday, regarding Obamacare, that it would be “unprecedented” for the Supreme Court to overturn a “passed law.”

Winning against malaria

 

Charles Krauthammer Obama v. SCOTUS

 

More important, and particularly pertinent to Romney’s choice, was Obama’s Tuesday speech comprehensively misrepresenting Rep. Paul Ryan’s budget. (For Ryan’s refutation of Obama, go to http://ow.ly/a6hPz.) Remarkably, the 42-year-old congressman is today’s agenda-setting Republican. Admirably, Romney has embraced Ryan’s approach to altering the ruinous trajectory of the entitlement state and forestalling what that trajectory presages, a “government-centered society” (Romney’s phrase in his fine Milwaukee speech Tuesday night).

Obama’s defense of reactionary liberalism — whatever is must ever be, only increased — is not weighed down by the ballast of scruples. His defense will be his campaign because he cannot forever distract the nation and mesmerize the media with such horrors as a 30-year-old law student being unable to make someone else pay for her contraception. So Romney’s running mate should have intellectual firepower, born of immersion in policy complexities, sufficient to refute Obama’s meretricious claims and derelictions of duty. Here are two excellent choices:

Ryan already is at the center of the campaign and is the world’s foremost expert on the Ryan-Romney plan. No one is more marinated in the facts to which Obama is averse. Ryan has not yet honed his rhetorical skills for communicating complexities to laypersons, but he is a quick study. One drawback is that he is invaluable as chairman of the Budget Committee and in 2015 might become chairman of Ways and Means.

Louisiana’s Gov. Bobby Jindal, 40, was a 20-year-old congressional staffer when he authored a substantial report on reforming Medicare financing. At 24, he became head of Louisiana’s Department of Health and Hospitals, with 12,000 employees and 40 percent of the state budget. Back in Washington at 26, he was executive director of the National Bipartisan Commission on the Future of Medicare. In 1999, he became president of Louisiana’s state university system, which has 80,000 students. In 2001, he served as an assistant secretary of health and human services. He became governor after three years in Congress.

Faux realists will belabor Romney with unhistorical cleverness, urging him to choose a running mate who supposedly will sway this or that demographic cohort or carry a particular state. But are, for example, Hispanics nationwide such a homogeneous cohort that, say, those who came to Colorado from Mexico will identify with a son of Cuban immigrants to Florida (Sen. Marco Rubio)? Do these realists know that, according to exit polls, Nevada’s Hispanic Gov. Brian Sandoval, a Republican, won only about a third of the Hispanic vote in 2010?

Furthermore, in the 16 elections since World War II, 10 presidential candidates have failed to carry the home state of their vice presidential running mates. Gov. Earl Warren could not carry California for Tom Dewey in 1948; Sen. Estes Kefauver could not carry Tennessee for Adlai Stevenson in 1956; former senator Henry Cabot Lodge could not carry Massachusetts for Richard Nixon in 1960; Rep. Bill Miller could not carry New York for Barry Goldwater in 1964; Gov. Spiro Agnew could not carry Maryland for Nixon in 1968; Sargent Shriver could not carry Maryland for George McGovern in 1972; Rep. Geraldine Ferraro could not carry New York (or women, or even her congressional district) for Walter Mondale in 1984; Sen. Lloyd Bentsen could not carry Texas for Michael Dukakis in 1988; Jack Kemp could not carry New York for Bob Dole in 1996; Sen. John Edwards could not carry North Carolina for John Kerry in 2004.

For the next decade, American politics will turn on this truth: Slowing the growth of the entitlement state is absolutely necessary and intensely unpopular. In this situation, which is ripe for a demagogue such as the Huey Long from Chicago’s Hyde Park, Romney’s choice of running mate should promise something Washington now lacks — adult supervision.”

georgewill@washpost.com

 

 

Republicans will field a strong, good and honest Candidate to oppose “Newspeak” Obama

Mitt Romney’s marvelous speech

 by Karl     at   HotAir:

Having written about the subtext of Pres. Obama’s Tuesday speech to news editors, it is worth looking at the speech likely GOP nominee Mitt Romney gave in the same venue on Wednesday. As reported at National Journal:

“Nancy Pelosi famous [sic] said that we would have to pass Obamacare to find out what was in it,” Romney said. “President Obama has turned that advice into a campaign strategy: He wants us to re-elect him to find out what he will actually do.

“With all the challenges the nation faces, this is not the time for President Obama’s hide-and-seek campaign,” he added.

Romney argued he presents a stark contrast, boldly laying out his own agenda to solve the country’s litany of problems. That was no more true than when he focused on entitlement spending, an issue Obama has attacked Romney on for adopting the budget proposal put forward by Rep. Paul Ryan, R-Wisc. The plan, the most prominent feature of which includes plans to convert Medicare into a premium-support model, polls poorly with the public, and is clearly an issue the president will highlight ad naseum through November.

But rather than distance himself from Ryan, he resolutely defended the House budget chairman, even praising him by name for having “the courage to offer serious solutions to the problems we face.” And he went on then offensive, accusing Obama of damaging Medicare first. Romney adopted the Democrats’ own attack against Republicans, saying that the president “has taken a series of steps that end Medicare as we know it.”

From this speech, folks on the left see Romney taking Obama’s bait — and that is not an entirely unfair assessment, merely an incomplete one. National Journal reports the Ryan plan polls badly based on its own poll, with an incomplete, misleading question. Nevertheless, given Democrats’ past success with Mediscare campaigns, it is not surprising some are licking their chops today.

However, the left is also missing the subtext of Romney’s speech, which reflects hard-headed realism. It reflects realism about our grave and growing debt problem (even if the Ryan plan is insufficient, it is necessary). It also reflects realism about the general election campaign to come. The Democrats intend to demagogue the Ryan plan and hang it around the neck of the GOP nominee, regardless of the identity of the nominee or his position on the Ryan plan. Romney knows this.

The establishment media, which has already allied itself with gross fiscal irresponsibility, will gleefully assist Team Obama in this campaign. Indeed, Obama’s demagoguery got a standing ovation from a packed house of news editors, while a much smaller crowd of journos gave Mitt Romney the polite golf clap. Romney knows this, too.

In 1996 (surely one of Obama’s models for a Democrat seeking reelection), GOP nominee Bob Dole ran away from the efforts of Newt Gingrich and the GOP Congress to bring the budget under control (even as Newt was driving Bill Clinton to sign welfare reform into law). This year, things could be different. Paul Ryan is probably a more stable ally now than Newt was then (or now). Moreover, even Obama’s budget director has warned that our debt is “serious and ultimately unsustainable.”

On the other hand, it may be — especially if the economy were to perk up between now and November — that Democratic demagoguery on entitlements can succeed again. But Romney’s speech suggests he recognizes he cannot afford to avoid the good fight, because Democrats and the media will surely fight the bad one.

This post was promoted from GreenRoom to HotAir.com.
To see the comments on the original post, look here.

 

 

Marxists Holder and Obama Answer Fifth Circuit Court Peevishly

Holder sends letter to Fifth Circuit:

Courts are supposed to presume

that laws are constitutional, you know

 by Allahpundit    at Hot Air

They asked for three pages single-spaced. He gave them two and a half. Impeach.

Seriously, though, given the immense interest in this story when it broke Tuesday, there was no way O wasn’t going to use the letter as an opportunity to plead his constitutional case on ObamaCare. The court wanted a statement of the DOJ’s position on judicial review but Holder naturally gave them a little more than that. First, the obligatory — and slightly peevish — acknowledgment that, yes, Marbury v. Madison is still good law:

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation…

The question posed by the Court regarding judicial review does not concern any argument made in the government’s brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.

Translation: The court should stop wasting time by demanding answers to questions that no one is asking, including the president. So much for judicial review. Then comes this part, which is aimed squarely at the Supreme Court and Anthony Kennedy:

In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Com1 has stressed that the presumption of constitutionality accorded to Acts of Congress is “strong.” United States v. Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that the “congressional judgment” at issue was “entitled to a strong presumption of validity”). The Supreme Court has explained: “This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.” Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-22i, 346 U.S. at 449.

In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820 (20 1 0) (“Respect for a coordinate branch of Govenm1ent forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.”); Beach Communications, Inc. , 508 U.S. at314-15.

It goes on from there. Remember Kennedy’s question to Verrilli on day two of oral arguments about the government’s “heavy burden of justification”? Holder’s arguing here that Kennedy has it backwards, that in fact the heavy burden is on the states to show that the statute somehow exceeds Congress’s authority under Article I. That’ll be a key dispute as the Court debates this behind closed doors, I’d bet. Should Kennedy presume that the statute is constitutional in deference to Congress or, per his now-famous point about the mandate fundamentally changing the relationship between the feds and citizens, should he take a more wary view? As is often true in law, where you start your analysis may determine where you end up. Although even if he follows Holder’s lead and resolves to err on the side of deference to Congress, it’s hard to see how a judge can uphold a law which he believes alters the constitutional order. That was my point in this post last week. If you want to tweak the “fundamentals” of the relationship between Washington and the public, logically your only remedy is Article V.

Here’s Carney from today’s press briefing, now in his third day of trying to explain how a constitutional law professor could tell the country on Monday that striking down the mandate would be “unprecedented.” He can’t admit the real reason so this will have to do.

Obama’s DOJ Holder forced to Explain to Circuit Court Judge Obamaignorance of Supreme Court Role

Obama As Dunce

by John Hinderaker at PowerLine:

“Pretty much everyone is piling on President Obama in connection with his airy dismissal of the concept of judicial review. The Department of Justice backtracked today in the form of a letter from Eric Holder to the 5th Circuit panel that asked for clarification of DOJ’s position on that topic. In his letter, Holder admits the obvious:

The power of the courts to review the constitutional ity of legislation is beyond dispute. … The Supreme Court resolved this question in Marbury v. Madison, 1 Cranch 137, 177-78 ( 1803). In that case, Case: 11-40631 Document: 00511812922 Page: 1 Date Filed: 04/05/2012 the Court held that ” [i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury, 1 Cranch at 177. …

Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of Acts of Congress.

Holder inserted the foreseeable boilerplate about statutes being entitled to a presumption of constitutionality, etc. No quarrel with that. But he concluded with this howler:

The President’s remarks were fully consistent with the principles described herein.

But they were not. Obama said:

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.

There is no way to put Obama’s statement next to Marbury v. Madison and claim they are consistent. For Holder to assert that they are is almost childish.

Michael Ramirez pictures Obama as the dunce that he increasingly appears to be: