The wait for the Supreme Court to release its decision on the constitutionality of ObamaCare is fraying the nerves of the chattering classes as they ponder its impact on the presidential election. Until the decision is announced, all both parties and the pundits can do is engage in idle speculation, but the pessimism on the left about the possibility of the president’s signature health care legislation being thrown out is leading to some interesting, if intemperate ideas. A good example comes from Juan Williams, who writes in The Hill to urge President Obama to try to make political hay out of what might otherwise be considered a disaster if the bill is junked.
Williams proposes that the president react by attempting to “blow up the system” in a manner that has not been seen since Franklin Roosevelt’s failed attempt to pack the Supreme Court in 1938. According to Williams, rather than the end of ObamaCare being seen as a humiliating failure, it would merely serve as an invitation to:
Use the bully pulpit of the White House, and the national stage of a presidential campaign, to launch a bitter attack on the current court as a corrupt tool of the Republican right wing.
It is a move that could energize Democrats and independents even as Republicans celebrate a major legal victory.
Some Democrats, sensing a political windfall, can’t wait to start the offensive.
But while an attack on the conservative majority on the High Court would be very popular with the liberal base of his party, it’s far from clear it would help him with independents or moderate Democrats. The comparison with FDR’s court spat should serve as a warning to the White House of the pitfalls of running against the separation of powers.
Roosevelt thought he was on solid ground when he sought to change the political balance of the Court because some of the New Deal legislation that it had overturned was popular. But his Court-packing plan was defeated because even members of his own party believed he was overreaching and seeking to grab even more power for an executive branch that increased its influence on his watch.
But if FDR’s anti-Court offensive failed in spite of the popularity of the New Deal, how can Obama possibly hope to succeed when what he would be protesting would be the demise of legislation that most Americans oppose? If, as conservatives hope and liberals fear, the Court decides that the Constitution’s Commerce Clause cannot be interpreted to allow government to create commerce in order to regulate it and thereby compel citizens to make purchases, then it will be doing what the majority wants them to do.
There’s no doubt the president will seek to demagogue the issue if the health care law is invalid and try to portray the Court and the bill’s Republican opponents as seeking to snatch medicine out of the mouths of sick people, babies and the elderly. That’s a tactic that has had some success when it comes to defending entitlements against reform efforts. But a re-election campaign focused on defending the vast expansion of federal power and the budget that ObamaCare would mandate would be an invitation to a rerun of the 2010 midterms that ended in Democratic defeat.
Even more to the point, though the president might get some traction out of Court-bashing, too much attention paid to the Court would make him look like a politician seeking to overturn the traditional checks and balances enshrined in the Constitution. Instead of a conservative Court being labeled as radical, such a stance would brand the president in that fashion. That’s an unforced error that could further erode his chances of re-election.
One can only pray that Obama takes Juan Williams' advice. Whatever scintilla of hope his candidacy might yet draw inspiration from will vanish like a whistle in a gale. If Roosevelt could not attack the court and win — Franklin Delano Roosevelt, mind you, the darling of the nation in 1937 — what chance would the ridiculous man now pretending to be president have?
Amen
I don't see how either ruling by SCOTUS can help Obama. n nIf SCOTUS does NOT strike Obamacare, the Tea Party is enraged & engaged more than in 2010 to throw him out, along with as many down-ticket Dems (and Est RINOs) as possible. n nIf SCOTUS DOES strike Obamacare, the Tea Party is engaged to ensure he cannot ever try this again… especially by Executive Order. n nThe REAL interesting thing is the timing of his DREAM Exec Order. (Does he know something we don't? Has Kagan or Sotomayer leaked to him the decision?) n nIf anyone on the Court was still on-the-fence this weekend re: Executive overreach and anything limiting the power of the federal government, if they were still polishing an argument or remained ambiguous about signing-on to either side's opinion as to Constitutional limitations on the power of the federal government if Obamacare is upheld, Obama certainly gave them their answer: No law or legislation will stop Obama. n nAnd his continual dissing of the Court certainly argues he won't allow THEM to stop his "fundamental transformation of America," either. n nIt may be a long, hot summer, worthy of either ammo or popcorn… You may want to load-up on both, just to be sure you're prepared.
“the traditional checks and balances enshrined in the Constitution.”
Mere cant and piety. The role of the Court as practiced today is not in the Constitution, and thus rests on shakier ground than thought. Yours is the typical thinking that does not deeply challenge assumptions.
I coud care less what Obama does, but the role of the Court as it is today is not a product of Philadelphia ’87. And Marbury is a philosophical thin reed to depend upon as a justification. I leave it for you to figure out why.
I thus ask people to not carve in stone what is only carved in wood.
Sheesh, if Obama takes Juan's advice and goes on to win, he had better hope Justice Kennedy dies quickly.
Enter text right here!Annadessma is right on the money. The only person to benefit from FDR's court packing plan was Lyndon Johnson who won a special election in 1937 to the House defending it, the only candidate in a multi-candidate race to do so. By 1938 it was one of the issues that led to a great Republican comeback, the greatest until 2010. n nSo Barack, blow up the Court as Juan Williams advised. Help us Republicans build on the gains.
I'm afraid this article repeats a common historical myth. Prior to FDR's attack, federal courts had struck down hundreds of provisions of the New Deal on constitutional grounds (many of them having to do with the Commerce Clause), and the Supreme Court had participated both actively and passively in the effort to protect the Constitution from FDR's massive expansion of federal power. After FDR's attempt to pack the Court, the Supreme Court was much more docile and accommodating with regard to New Deal legislation, and never again posed a significant obstacle to FDR's legislative goals.
Obama is foolish and furthermore, does not understand the wisdom of the concept of limited government. He might well try the FDR routine, arrogantly imagining that he can pull it off. n n"Fools rush in where wise men fear to tread"