Commentary Magazine


Topic: court packing plan

Will Obama Try to Blow Up the Court?

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.

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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.

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