Commentary Magazine


Topic: Randy Barnett

Re: Surprises

Last night a reader and I tried to recall if another president had lashed out at the Supreme Court in the way Obama went after the Court for its defense of the First Amendment in striking down portions of the McCain-Feingold statute. Obama suggested that the Court was somehow running to the aid of nefarious “foreign entities” and ignored entirely what was at issue in the case — the protection of core political speech. He proclaimed:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Apparently, Obama is just wrong. The Court’s ruling didn’t impact the section of the statute that prohibits foreign corporations from making campaign donations or expenditures. (And the ban on direct corporate contributions remains in effect.) No wonder Justice Alito mouthed “not true.” (Even the New York Times’s notoriously liberal-leaning former court reporter Linda Greenhouse says Obama botched the case description.)

But aside from that, there’s the unseemly sight of the president berating the Court in this manner. Constitutional scholar Randy Barnett was thinking about the president’s attack too. He writes:

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

This conduct is even more repellent given that Obama waves around his law school credentials and constitutional-law teaching background when it’s convenient to impress voters with his command of the fine points of our legal system, yet resorts to know-nothing political posturing on the judiciary when it serves his purposes. And what makes this particularly disingenuous is that the president said a great deal about tone and political posturing last night. He lectured us:

Unfortunately, too many of our citizens have lost faith that our biggest institutions — our corporations, our media, and yes, our government — still reflect these same values. Each of these institutions are full of honorable men and women doing important work that helps our country prosper. But each time a CEO rewards himself for failure, or a banker puts the rest of us at risk for his own selfish gain, people’s doubts grow. Each time lobbyists game the system or politicians tear each other down instead of lifting this country up, we lose faith. The more that TV pundits reduce serious debates into silly arguments, and big issues into sound bites, our citizens turn away.

One of those institutions filled with honorable men and women doing important work is the Supreme Court. Obama proceeded to minimize a serious debate over the centrality of the First Amendment to the robust operation of our political system by resorting to a silly argument, from which serious citizens should surely turn away. He conveys not merely a lack of respect for a co-equal branch of government (and ignorance about the ruling he was vilifying) but for the Constitution itself, which he is sworn to uphold. For a lawyer, his conduct is embarrassing; for a president, it is inexcusable.

Last night a reader and I tried to recall if another president had lashed out at the Supreme Court in the way Obama went after the Court for its defense of the First Amendment in striking down portions of the McCain-Feingold statute. Obama suggested that the Court was somehow running to the aid of nefarious “foreign entities” and ignored entirely what was at issue in the case — the protection of core political speech. He proclaimed:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Apparently, Obama is just wrong. The Court’s ruling didn’t impact the section of the statute that prohibits foreign corporations from making campaign donations or expenditures. (And the ban on direct corporate contributions remains in effect.) No wonder Justice Alito mouthed “not true.” (Even the New York Times’s notoriously liberal-leaning former court reporter Linda Greenhouse says Obama botched the case description.)

But aside from that, there’s the unseemly sight of the president berating the Court in this manner. Constitutional scholar Randy Barnett was thinking about the president’s attack too. He writes:

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

This conduct is even more repellent given that Obama waves around his law school credentials and constitutional-law teaching background when it’s convenient to impress voters with his command of the fine points of our legal system, yet resorts to know-nothing political posturing on the judiciary when it serves his purposes. And what makes this particularly disingenuous is that the president said a great deal about tone and political posturing last night. He lectured us:

Unfortunately, too many of our citizens have lost faith that our biggest institutions — our corporations, our media, and yes, our government — still reflect these same values. Each of these institutions are full of honorable men and women doing important work that helps our country prosper. But each time a CEO rewards himself for failure, or a banker puts the rest of us at risk for his own selfish gain, people’s doubts grow. Each time lobbyists game the system or politicians tear each other down instead of lifting this country up, we lose faith. The more that TV pundits reduce serious debates into silly arguments, and big issues into sound bites, our citizens turn away.

One of those institutions filled with honorable men and women doing important work is the Supreme Court. Obama proceeded to minimize a serious debate over the centrality of the First Amendment to the robust operation of our political system by resorting to a silly argument, from which serious citizens should surely turn away. He conveys not merely a lack of respect for a co-equal branch of government (and ignorance about the ruling he was vilifying) but for the Constitution itself, which he is sworn to uphold. For a lawyer, his conduct is embarrassing; for a president, it is inexcusable.

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Flotsam and Jetsam

What comes from a commander in chief who sends mixed messages? “Nearly a month after Obama unveiled his revised Afghanistan strategy, military and civilian leaders have come away with differing views of several fundamental aspects of the president’s new approach, according to more than a dozen senior administration and military officials involved in Afghanistan policy, all of whom spoke on the condition of anonymity to discuss internal deliberations.”

Matthew Continetti: “There really are two Americas. There’s the America of the ‘expert’ schemers, planners, and centralizers inside the Beltway, who think they know what’s good for the people, whether the people like it or not. And there’s the America of just about everyone else. They are no doubt the ones Irving Kristol had in mind when he wrote, ‘The common people in such a democracy are not uncommonly wise, but their experience tends to make them uncommonly sensible.’” It is a good thing indeed that there are more of the latter.

David Axelrod says we will learn to love ObamaCare: “When people focus on what this bill is and not what it isn’t and recognize what an enormous landmark achievement it is, progressive achievement, you’ll see folks rallying around this and not running away from it.” Notice how they assume the public will be awed by the “landmark” quality of the bill. That’s how politicians think; ordinary people tend to focus on what legislation is actually going to do for or to them.

The Washington Post editors blast the Obami’s human-rights policy, seeking to mix economic progress with fundamental rights as “standard doctrine of the Soviet Bloc, which used to argue at every East-West conference that human rights in Czechoslovakia were superior to those in the United States, because one provided government health care that the other lacked.” Ouch. The editors rightly condemn this as a sly effort to downplay democracy, especially in the Middle East: “If the Obama administration believes that liberty is urgently needed in the homelands of al-Qaeda, Ms. Clinton still has offered no sign of it.”

Yes, in the end, all Democrats on health-care “reform” turned out to be liberals in favor of a big government power grab: “We trust voters in Nebraska, Louisiana, Indiana, Virginia and elsewhere noticed that these votes ultimately ensured the passage of a bill that will increase insurance costs, retard medical innovation and sorely damage the country’s fiscal position.” Judging from the polls, I think they are noticing.

Looks like our fellow citizens are our best defense: “Despite the billions spent since 2001 on intelligence and counterterrorism programs, sophisticated airport scanners and elaborate watch lists, it was something simpler that averted disaster on a Christmas Day flight to Detroit: alert and courageous passengers and crew members.”

New York District Attorney Robert Morgenthau on the Obami’s Iran engagement policy: “The president is smoking pot or something if he thinks that being nice to these guys is going to get him anywhere.”

Respected legal scholar Randy Barnett makes the argument that the individual mandate to buy health insurance is unconstitutional: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. . . First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.” And if not unconstitutional, it is at the very least, enormously objectionable to a great number of Americans on both the Right and the Left.

What comes from a commander in chief who sends mixed messages? “Nearly a month after Obama unveiled his revised Afghanistan strategy, military and civilian leaders have come away with differing views of several fundamental aspects of the president’s new approach, according to more than a dozen senior administration and military officials involved in Afghanistan policy, all of whom spoke on the condition of anonymity to discuss internal deliberations.”

Matthew Continetti: “There really are two Americas. There’s the America of the ‘expert’ schemers, planners, and centralizers inside the Beltway, who think they know what’s good for the people, whether the people like it or not. And there’s the America of just about everyone else. They are no doubt the ones Irving Kristol had in mind when he wrote, ‘The common people in such a democracy are not uncommonly wise, but their experience tends to make them uncommonly sensible.’” It is a good thing indeed that there are more of the latter.

David Axelrod says we will learn to love ObamaCare: “When people focus on what this bill is and not what it isn’t and recognize what an enormous landmark achievement it is, progressive achievement, you’ll see folks rallying around this and not running away from it.” Notice how they assume the public will be awed by the “landmark” quality of the bill. That’s how politicians think; ordinary people tend to focus on what legislation is actually going to do for or to them.

The Washington Post editors blast the Obami’s human-rights policy, seeking to mix economic progress with fundamental rights as “standard doctrine of the Soviet Bloc, which used to argue at every East-West conference that human rights in Czechoslovakia were superior to those in the United States, because one provided government health care that the other lacked.” Ouch. The editors rightly condemn this as a sly effort to downplay democracy, especially in the Middle East: “If the Obama administration believes that liberty is urgently needed in the homelands of al-Qaeda, Ms. Clinton still has offered no sign of it.”

Yes, in the end, all Democrats on health-care “reform” turned out to be liberals in favor of a big government power grab: “We trust voters in Nebraska, Louisiana, Indiana, Virginia and elsewhere noticed that these votes ultimately ensured the passage of a bill that will increase insurance costs, retard medical innovation and sorely damage the country’s fiscal position.” Judging from the polls, I think they are noticing.

Looks like our fellow citizens are our best defense: “Despite the billions spent since 2001 on intelligence and counterterrorism programs, sophisticated airport scanners and elaborate watch lists, it was something simpler that averted disaster on a Christmas Day flight to Detroit: alert and courageous passengers and crew members.”

New York District Attorney Robert Morgenthau on the Obami’s Iran engagement policy: “The president is smoking pot or something if he thinks that being nice to these guys is going to get him anywhere.”

Respected legal scholar Randy Barnett makes the argument that the individual mandate to buy health insurance is unconstitutional: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. . . First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.” And if not unconstitutional, it is at the very least, enormously objectionable to a great number of Americans on both the Right and the Left.

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