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Presidential Chutzpah

Presidential chutzpah. Well, at least you can admire him for that perhaps. After all, someone who graduated from Harvard Law School, edited the Harvard Law Review, and taught constitutional law at the University of Chicago Law School must be familiar with Marbury v. Madison. As Wikipedia explains, it’s an important case:

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional.” The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

And yet President Obama yesterday implicitly claimed never to have heard of it, allowing him to say regarding Obamacare that it would be an “unprecedented, extraordinary” step for the Supreme Court to overturn legislation passed by a “strong majority of a democratically elected Congress.” The precedents go back 209 years and, as Jonah Goldberg pointed out on “Special Report” last night, the Supreme Court has been overturning acts of Congress ever since, on average every 16 months. So overturning Obamacare would be about as unprecedented as the sun rising in the east tomorrow morning. Actually the precedents go back even further, as Alexander Hamilton mentioned the power of judicial review in Federalist Paper 78, written in 1788. The last president to seriously challenge the court’s power to overturn an act of Congress under the doctrine of judicial review was Andrew Jackson, who famously said after one decision he didn’t like, “The court has made its decision; now let it enforce it.”

The court has overturned laws based on the Commerce Clause as recently as 1995 (United States v. Lopez) and 2000 (United States v. Morrison). Both of those were relatively minor cases, although significant for putting limits on federal power under the Commerce Clause for the first time since the early New Deal. But major pieces of legislation have also been overturned. The National Recovery Act of 1933 was the last piece of legislation passed during the “Hundred Days.” Its purpose was, essentially, to cartelize the entire United States economy under the direction of the National Recovery Administration (the NRA, whose symbol was the famous blue eagle). Franklin Roosevelt called the legislation “the most important and far-reaching ever enacted by the American Congress.” But that didn’t stop the Supreme Court from overturning it in May 1935, by a vote of 9-0.

The National Recovery Act passed the House by a large majority and the Senate by 46-39. The “strong majority” mentioned by Obama in the passage of Obamacare did not exist. It passed the Senate 60-39 on Christmas Eve, when the Senate, briefly, had a filibuster-proof majority. But by the time a vote neared in the House, that filibuster-proof majority had vanished with the election of Scott Brown in Massachusetts. So the House had to pass the Senate bill unchanged in order to get it to the President’s desk. Only much arm-twisting and deal-making allowed the bill to pass the House with a majority of only seven votes, 219-212. It garnered not a single Republican vote in either house, the first time so important a piece of legislation was passed on a totally partisan basis.

As I said, one can only admire his chutzpah. It seems there is simply no lie President Obama will not tell in pursuit of his agenda. He can count on the mainstream media buying it, but will anyone else?

 



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