Commentary Magazine


Topic: Supreme Court

Reading Tea Leaves on ObamaCare

We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

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We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

That’s pretty interesting, if Roy’s third-hand sources are correct. If the Court hasn’t decided how to rule on this question, we could be waiting longer than just another week or two. The consensus among journalists and others closely following this seems to be that the ruling will come next Monday, or possibly later next week if the Court needs additional time. But there’s no deadline, and the Court can pretty much do what it wants when it comes to timing.

Roy also notes an interesting development from Justice Scalia, who released a book this week clarifying his position on a decision related to the Commerce Clause:

Wickard, [Scalia] writes, “expanded the Commerce Clause beyond all reason” by opining that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.” …

The bottom line is that if Scalia thinks Wickard was wrongly decided, he’s almost certain to vote to overturn the mandate. This isn’t a surprise based on his commentary at oral argument, but it may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.

After Scalia’s tough questioning during the health care arguments, it seemed highly likely that he would side against the individual mandate. But Obama administration attorneys were reportedly speculating prior to that that Scalia could be a swing vote to uphold the mandate based on his previous opinions related to the Commerce Clause. Scalia may be attempting to reconcile this in his latest book.

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McConnell Vows to Defend Citizens United

Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

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Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

The latest example is David Axelrod, who promised earlier this week that if Obama wins a second term, he will pursue any option — including a constitutional amendment — to restrict these rights:

“When we win, we will use whatever tools out there, including a constitutional amendment, to turn this back. I understand the free speech argument, but when the Koch brothers can spend $400 million, more than the McCain campaign and the Republican Party spent last time, that’s very concerning.”

At AEI, McConnell blasted Axelrod and the Obama administration for the proposal.

“Amending the First Amendment for the first time in history is an act of radicalism,” said McConnell.

There are other indications that the issue of political money will be back at the top of the news this summer. The Supreme Court reportedly met earlier this week to consider a Montana case that challenges some aspects of the Citizens United decision and a subsequent Appellate Court ruling on unlimited political contributions. The Los Angeles Times reports that the appeal isn’t expected to be denied, and the Supreme Court may either decide to hear the case or write a summary opinion defending the Citizens United ruling.

McConnell said as the election nears, some Republicans may be tempted “to take the issue off the table or make concessions.”

“My advice is to resist the temptation,” he said.

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Who Loses if ObamaCare is Overturned?

A popular argument lately has been if the Supreme Court overturns ObamaCare, it will actually be disastrous for Republicans by taking away a major motivating force that would have driven voters to the polls in November. That’s hard to believe. Voters routinely cite jobs and the economy as the top issues that influence their votes, with health care trailing well behind. Those who do list health care as a key voting priority are actually more likely to support Obama. Not to mention, anyone who was planning to vote based on their opposition to ObamaCare would likely be attracted to the GOP’s broader economic vision as well.

Democrats have by far the most to lose if the law is struck down, and their response will be hugely important. In the WSJ today, Karl Rove outlines the best case Obama can make if his signature legislative achievement is overturned:

If the court moves to invalidate part or all of the Affordable Care Act, what matters most politically is Mr. Obama’s response.

The president could pivot to the center and regain some of the high ground he occupied in his 2008 campaign. He could say that while he disagreed with the court’s decision, the justices had the responsibility under our system to decide whether the law was constitutional. Everyone needs to respect and accept the verdict.

He could then add that a big problem remains: Tens of millions of our fellow citizens lack affordable health insurance. Now it is the responsibility of Republicans and Democrats, liberals and conservatives to come together and provide access to coverage. And the president could offer proposals to do that.

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A popular argument lately has been if the Supreme Court overturns ObamaCare, it will actually be disastrous for Republicans by taking away a major motivating force that would have driven voters to the polls in November. That’s hard to believe. Voters routinely cite jobs and the economy as the top issues that influence their votes, with health care trailing well behind. Those who do list health care as a key voting priority are actually more likely to support Obama. Not to mention, anyone who was planning to vote based on their opposition to ObamaCare would likely be attracted to the GOP’s broader economic vision as well.

Democrats have by far the most to lose if the law is struck down, and their response will be hugely important. In the WSJ today, Karl Rove outlines the best case Obama can make if his signature legislative achievement is overturned:

If the court moves to invalidate part or all of the Affordable Care Act, what matters most politically is Mr. Obama’s response.

The president could pivot to the center and regain some of the high ground he occupied in his 2008 campaign. He could say that while he disagreed with the court’s decision, the justices had the responsibility under our system to decide whether the law was constitutional. Everyone needs to respect and accept the verdict.

He could then add that a big problem remains: Tens of millions of our fellow citizens lack affordable health insurance. Now it is the responsibility of Republicans and Democrats, liberals and conservatives to come together and provide access to coverage. And the president could offer proposals to do that.

The Obama campaign would be smart to take Rove’s advice and shift to the center if the law is overturned. But judging from the campaign’s strategical blunders so far, it seems more likely to take the opposite route. If ObamaCare is struck down (completely or in part), the Democratic base will go ballistic. The left already views Obama as a weak leader who has acquiesced to Republicans and failed to push through a more muscular progressive agenda. It would be devastating to have his single biggest accomplishment erased from the books. Unless the president publicly endorses an even more radical health care law to replace ObamaCare, progressives may be reluctant to support him for another term.

On the other hand, if ObamaCare is upheld by the Supreme Court, the left will have an additional reason to turn out and vote — if only to prevent Mitt Romney from taking office and dismantling the chief progressive accomplishment of the past four years.

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Still More Liberal Legal Meltdown

A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

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A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

As for conceptual and economic sophistry, nothing is likely to top Justice Breyer’s suggestion during oral argument that, on the day you were born, “because you are a human being, [you] entered this particular market, which is a market for health care.” Being born, as the trigger for power under the Commerce Clause, seems a bit of a stretch even for a liberal constitutionalist.

In any event, today’s WSJ letter, dismissing the challenge to ObamaCare as “sophistry,” is another example (to use John Podhoretz’s words) of “the unerring liberal inability” to credit the arguments of opponents – and another pre-emptive libel of a Court that may be about to moor Congress’s power to the text.

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Will the Court Follow the People?

Ever since the Supreme Court listened to oral arguments about the constitutionality of Obamacare, the administration and its supporters have been doing everything in their power to influence the justices to leave the president’s signature legislative achievement in place. In particular, Chief Justice Roberts and other conservatives have received not-so-subtle hints that their legacies will be judged by whether or not they allow the law to stand. I doubt that Roberts cares very much about the opinion of the president or the New York Times, but there is a school of thought that wonders about whether Justice Kennedy — the quintessential swing voter on the court — might be influenced in that fashion. However, there is the old axiom that the Supreme Court follows the election returns.

Historically, the court has, after its own fashion, validated that observation, often granting its judicial seal of approval to certain trends only after they have seen the advocates of constitutional positions triumph at the polls. The problem with this is the people can change their minds every two or four years, but once the court settles on an opinion it can be set in stone for a generation or more. Thus, it is with no small interest that we look at polls about the constitutionality of ObamaCare, a decision on which will be handed down within weeks. Rasmussen’s new poll shows that a solid 55-39 percent majority favors its repeal. Virtually every poll taken on the issue in the last two years has gotten more or less the same result. This means that if the court does strike the law down, it will not only be restoring a sense of limits to the power of the government to use the Commerce Clause to justify any conceivable expansion of federal power, it will also be following the will of the people.

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Ever since the Supreme Court listened to oral arguments about the constitutionality of Obamacare, the administration and its supporters have been doing everything in their power to influence the justices to leave the president’s signature legislative achievement in place. In particular, Chief Justice Roberts and other conservatives have received not-so-subtle hints that their legacies will be judged by whether or not they allow the law to stand. I doubt that Roberts cares very much about the opinion of the president or the New York Times, but there is a school of thought that wonders about whether Justice Kennedy — the quintessential swing voter on the court — might be influenced in that fashion. However, there is the old axiom that the Supreme Court follows the election returns.

Historically, the court has, after its own fashion, validated that observation, often granting its judicial seal of approval to certain trends only after they have seen the advocates of constitutional positions triumph at the polls. The problem with this is the people can change their minds every two or four years, but once the court settles on an opinion it can be set in stone for a generation or more. Thus, it is with no small interest that we look at polls about the constitutionality of ObamaCare, a decision on which will be handed down within weeks. Rasmussen’s new poll shows that a solid 55-39 percent majority favors its repeal. Virtually every poll taken on the issue in the last two years has gotten more or less the same result. This means that if the court does strike the law down, it will not only be restoring a sense of limits to the power of the government to use the Commerce Clause to justify any conceivable expansion of federal power, it will also be following the will of the people.

After the disastrous performance of the solicitor general in defense of the law during the three fateful days of arguments, there has been a concerted effort by the left to overcome the impression that the personal mandate is doomed by appeals to the court’s history. But while it might have been argued that a court ruling that overturned the legislature’s decision would have been an overreach, doing so after that legislation had been the key issue in a midterm massacre of those who voted for it is certainly less so. As this Rasmussen poll, and all the others that got the same results illustrates, should the court strike down ObamaCare, there will be no national backlash against Roberts and his colleagues except in the editorial columns of liberal newspapers.

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Will the Media Be More Fair in ’12 Election?

The White House is still feeling heat from President Obama’s comments suggesting it would be “unprecedented” for the Supreme Court to overturn a law passed by Congress. And much of it has to do with the fact that the media is actually doing its job and calling the president out on his falsehoods:

During robust questioning when [White House Press Secretary Jay] Carney was told at one point that he had mischaracterized what the president had said, the press secretary was forced to repeatedly defend the remarks of his boss as an observation of fact.

“Since the 1930s the Supreme Court has without exception deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as health care, 80 years,” Carney said.

“He did not mean and did not suggest that … it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do,” Carney said.

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The White House is still feeling heat from President Obama’s comments suggesting it would be “unprecedented” for the Supreme Court to overturn a law passed by Congress. And much of it has to do with the fact that the media is actually doing its job and calling the president out on his falsehoods:

During robust questioning when [White House Press Secretary Jay] Carney was told at one point that he had mischaracterized what the president had said, the press secretary was forced to repeatedly defend the remarks of his boss as an observation of fact.

“Since the 1930s the Supreme Court has without exception deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as health care, 80 years,” Carney said.

“He did not mean and did not suggest that … it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do,” Carney said.

Take a look at the video to see Carney try to spin the president’s comments as the “reverse of intimidation.” Politifact also checked into Obama’s assertions, and rated them false in a scathing review:

There’s simply no support for the assertion that the law was passed by a “strong majority.” It was passed along party lines in a sharply partisan climate, and the 60 votes in the Senate were the minimum needed to keep Republicans from bottling it up in a filibuster.

But the “unprecedented” idea is more nuanced. It’s without question that the Supreme Court overturning a law passed by Congress — by any margin — is a common and routine occurrence, and by no means without precedent. Volokh gave us a close analogy with the case of Boerne v. Flores, a religious freedom law that glided through Congress but was held unconstitutional by a majority of the court, including two of its liberal justices. …

But we’re taking Obama literally, and that historical perspective was not reflected in his original statement, which is what we’re ruling on. He simply said the law passed with a strong majority and overturning it would be unprecedented. Wrong and wrong. We rate the statement False.

Many have questioned why Obama, a supposed constitutional law scholar, would make comments so obviously inaccurate. I doubt it’s out of ignorance. As a former student of Obama’s pointed out, he didn’t seem concerned about the courts overturning “duly constituted and passed laws” when he was teaching at Chicago.

The reason Obama made these comments might be simpler. He thought he could get away with them. In the past, the media simply hasn’t called him out on the inaccuracies and distortions in his speeches. That changed this week, and may be a sign this presidential election may at least have fairer news coverage than the last.

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The President’s Abysmal Record

Is this the week the Obama administration’s remarkable incompetence begins to be the narrative? If so, he’s toast.

The president’s astonishing, not to mention indefensible, lecture to the Supreme Court this week, in which he turned 200 years of American constitutional history on its head, has been the talk of the blogosphere. But it’s not just the fact that he pretends to have not heard of Marbury v. Madison, it’s the anger behind his remarks that he is having trouble concealing. Even his old professor at Harvard felt he had to weigh in.

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Is this the week the Obama administration’s remarkable incompetence begins to be the narrative? If so, he’s toast.

The president’s astonishing, not to mention indefensible, lecture to the Supreme Court this week, in which he turned 200 years of American constitutional history on its head, has been the talk of the blogosphere. But it’s not just the fact that he pretends to have not heard of Marbury v. Madison, it’s the anger behind his remarks that he is having trouble concealing. Even his old professor at Harvard felt he had to weigh in.

It is not hard to see why he might be angry. His single major domestic accomplishment, Obamacare, is in mortal peril in the Supreme Court. InTrade has the chances of its being overturned at 63.8 percent this morning. And it remains deeply unpopular with the public at large. His other domestic efforts have been largely a bust. The stimulus did not produce the promised economic boost and recovery from the recession remains stubbornly slow and unemployment stubbornly high. Green energy is failing and failing and failing. The price of gas has nearly doubled since he became president, despite the recession, while domestic production of oil and natural gas has been rising despite his policies, not because of them.

And, of course, the country continues hell-bent towards the fiscal cliff at the rate of $1 trillion plus per year. Obama, and the Senate Democrats, have not even tried to do anything about something the people in poll after poll have called their number one concern.

As for his foreign policy successes, I’d list them except there haven’t been any. His failures are numerous. Our antagonists, such as Iran, Korea, Russia, and China have little or no respect for him, and thus no inclination to play ball. He has managed to alienate such important allies as Britain and Israel. Indeed, his very first foreign policy act was to insult Britain by summarily returning a bust of its great national hero, Winston Churchill–the man who saved the world in 1940–to the British Embassy. It’s only gotten worse. Last week, his open-mic gaffe with the Russian president was greatly embarrassing. This week’s summit with Mexico and Canada revealed deep problems within the North American alliance, problems that were hardly noted in the American mainstream press–a wholly owned subsidiary of the Obama re-election campaign–but were widely on view in the Mexican and Canadian media.

In sum, it’s a remarkable record, especially for a man who thinks of himself as a transformational figure in American history. The president looks in the mirror and sees FDR. Increasingly, the rest of the country look at him and see Jimmy Carter, perhaps even James Buchanan. They were both one-term presidents.

 

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Another Liberal Libel of the Court

John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

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John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

His post is not even internally consistent. He asserts conservative justices are relying on “the strict and arbitrary language of an antique Constitution,” which seems to cut against his argument that they are preparing to rule “in spite of text.” His real problem is the text itself, not justices who think they must stay within it. Stripped of his tendentious adjectives (“strict,” “arbitrary,” “antique”), Prof. Dworkin is criticizing judicial reliance on the “language of [the] Constitution.”

That reliance was inherent in Justice Kennedy’s first question to the Solicitor General: “Can you create commerce in order to regulate it?” The answer is not obvious, nor non-controversial, nor addressed by any prior Court precedent.

Which suggests that the place to start the analysis is the text of the constitutional provision. In A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Princeton University Press: 1998), Justice Scalia writes:

If you … read a brief filed in a constitutional law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding.

In the case of Obamacare, the prior precedents do not “obviously” support the law, which accounts for the fact that the plaintiffs are not asking the Court to overrule any prior case. The argument instead is that the Commerce Clause, by its terms, gives Congress the power to regulate commerce, but not to force every individual into it — to regulate those engaged in commerce, not to require every person to buy whatever Congress wants them to buy. Prior case law allows Congress to regulate farmers engaged in producing wheat, not to require every person in the country to buy Wheaties.

The Court can decide this case either way precisely because the issue has not previously been addressed. But the text and original understanding of the Commerce Clause suggest the answer to Justice Kennedy’s question is “no,” and Dworkin’s citation of “basic constitutional principle” (he neither cites nor discusses any actual Court precedents) suggest he is appealing to some uber-concept outside the text of the law.

Perhaps he shares the view that Senator Barack Obama expressed at the time of Justice Roberts’ confirmation hearing: that in important cases justices should rely not on the language of the law, but on what is in their wise hearts. We can see the problem with this approach in Prof. Dworkin’s post, which impugns the integrity of the justices who might disagree with his heartfelt position. Rather than demonstrate that the problem is the Court (it is not), he has provided an extraordinary example of the trait John noted.

 

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Maureen Dowd, Light as Air

It’s no secret, and it’s no surprise, that liberal commentators have become enraged at the conservative members of the Supreme Court, who exposed the Patient Protection and Affordable Care Act as an unconstitutional and unholy mess in last week’s oral arguments. It would be a full-time job keeping track of the invective. But one person does deserve special mention: Maureen Dowd of the New York Times.

In her column, she says of the current Court, “It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”

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It’s no secret, and it’s no surprise, that liberal commentators have become enraged at the conservative members of the Supreme Court, who exposed the Patient Protection and Affordable Care Act as an unconstitutional and unholy mess in last week’s oral arguments. It would be a full-time job keeping track of the invective. But one person does deserve special mention: Maureen Dowd of the New York Times.

In her column, she says of the current Court, “It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”

Now that is rich. Dowd’s columns are, without exception, an intellectual content-free zone. They are mood-pieces, a window into the unstable emotional state of liberal east coast elitists. Her words are unburdened by facts, reason, or analysis.

That isn’t a crime, and it even serves a purpose of sorts. But she’s impossible to take seriously. And for her to criticize Antonin Scalia’s grasp of the law is like a third-string quarterback in middle school criticizing Peyton Manning’s grasp of football.

Dowd is as light as air.

 

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Appeals Court Orders DOJ to Clarify “Judicial Restraint” Position

An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.

CBS News reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

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An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.

CBS News reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Was this an honest request, or a political stunt? Obviously, the Obama administration’s position on this is relevant in this case. However, this is only going to feed into the latest contention from Democrats that there’s too much politicization in the courts. At Volokh Conspiracy, Orin Kerr writes that the 5th Circuit’s request was inappropriate, particularly since the DOJ lawyer had already responded to the question in court:

Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

President Obama has also clarified his comments since Monday, which could change the court’s mind about the order before the deadline tomorrow.

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The Week Obama Jumped the Shark

In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

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In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

Obama, a former community organizer who is perhaps unaware of the finer points of the law, might want to acquaint himself with an obscure  19th century case, Marbury v. Madison, which established the doctrine of judicial review and grants federal courts the power to void acts of Congress that are in conflict with the Constitution. What Obama describes as “unprecedented” has, in fact, been done countless times since 1803.

Then there’s Obama’s confusion about judicial activism. It is not, as he insists, simply the act of overturning an existing law; it is when judges allow their personal views about public policy, and not the Constitution, to guide their decisions and often invent new rights out of thin air. For Justices to invalidate a law they deem to be unconstitutional is precisely what the Supreme Court is supposed to do. (“No legislative act … contrary to the Constitution, can be valid,” is how Alexander Hamilton put it in Federalist #78.) If one takes Obama’s words literally, he believes an unjust and unconstitutional law, if passed by a strong majority of a democratically elected Congress, cannot be overturned.

What the president said, then, was so ill-informed, so ignorant, that people assumed he must know better. There’s no way we can know. But whatever the case, this has been quite a bad stretch for the president. His comments about the Supreme Court, when combined with his astonishingly dishonest attack on the House GOP budget (see here for more), portray a president who is living in a fantasy world — a place where facts and history are inverted, lies become truth, where everything is subordinated to ambition and you simply make things up as you go along. Nietzsche referred to this mindset as the “will to power.” In American politics it’s known as The Chicago Way.

I don’t know what the political effect of all this will be. But intellectually, this is the week where Barack Obama jumped the shark. In a deep, fundamental way, he is no longer a serious man. Nor an honest one. His public words are now purposefully bleached of truth. And that is a painful thing to have to say about an American president.

 

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Liberal Congressman Urges Obama to Campaign Against SCOTUS

Between now and the Supreme Court’s ruling on Obamacare in June, we’re sure to see a lot of these attacks on the supposedly activist conservative court. The Wall Street Journal editorial board did a good job yesterday skewering the idea that overturning the mandate would be an example of judicial activism, but if the court strikes down the mandate or full law as many have speculated, the “activist” argument is really the only card the Democrats can play.

Rep. James Clyburn (D-S.C.) said President Obama should campaign against the Supreme Court, painting it as a conservative, activist institution if it rules that the administration’s healthcare law is unconstitutional.

“In terms of the Congress, I believe that it would be off-base for us to do that, but for the president, I don’t think it is,” Clyburn said on MSNBC’s “Morning Joe” on Monday. “I think the president ought to take a look at what happened in years before — we’ve seen presidents run against Congress and we’ve seen presidents run against the Supreme Court. Franklin Roosevelt did it to the Supreme Court; [Harry] Truman did it to the Congress.”

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Between now and the Supreme Court’s ruling on Obamacare in June, we’re sure to see a lot of these attacks on the supposedly activist conservative court. The Wall Street Journal editorial board did a good job yesterday skewering the idea that overturning the mandate would be an example of judicial activism, but if the court strikes down the mandate or full law as many have speculated, the “activist” argument is really the only card the Democrats can play.

Rep. James Clyburn (D-S.C.) said President Obama should campaign against the Supreme Court, painting it as a conservative, activist institution if it rules that the administration’s healthcare law is unconstitutional.

“In terms of the Congress, I believe that it would be off-base for us to do that, but for the president, I don’t think it is,” Clyburn said on MSNBC’s “Morning Joe” on Monday. “I think the president ought to take a look at what happened in years before — we’ve seen presidents run against Congress and we’ve seen presidents run against the Supreme Court. Franklin Roosevelt did it to the Supreme Court; [Harry] Truman did it to the Congress.”

Obama probably isn’t looking to Clyburn for campaign strategy, but the congressman’s comments do provide insight into the liberal mindset at the moment. The Supreme Court went into the Obamacare hearings with record low approval ratings of just 28 percent in the latest Rasmussen, and perhaps the Wall Street Journal is right that the criticism of the court is purely a public lobbying effort by the left – a warning to Justice Kennedy that his legacy hangs in the balance and an appeal to Chief Justice Roberts’ supposed sensitivity about the public image of his court.

On the other hand, liberals may actually have an appetite for an anti-SCOTUS campaign led by the president next fall, especially as their anger about the Citizens United ruling still hasn’t ebbed. But even with the court’s low approval rating, this seems like an ill-advised strategy. Obama’s health care law is unpopular, and the majority of Americans believe it’s unconstitutional. If the Supreme Court also takes that position in June, then Obama attacking the justices for it on the campaign trail isn’t going to be very helpful.

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Dems Spinning Possible Health Care Loss

These comments from James Carville are a testament to how shaken Democrats are after yesterday’s health care arguments, which didn’t appear to bode well for the administration. The political strategist told CNN that SCOTUS overturning Obama’s health care law would be the “best thing” that could ever happen to the Democratic Party. Right. Because having the president’s only noteworthy achievement invalidated about five months before his reelection is a sure recipe for political success.

“I think that this will be the best thing that ever happens to the Democratic party because health care costs are gonna escalate unbelievably,” Carville told CNN’s Wolf Blitzer of a possible Supreme Court decision to strike down the law. “I honestly believe this, this is not spin.”

“You know what the Democrats are going to say – and it is completely justified: ‘We tried, we did something, go see a 5-4 Supreme Court majority,’” Carville added. “The public has these guys figured out. Our polls show that half think this whole thing is political.”

“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5-4 and then the Republican Party will own the health care system for the foreseeable future. And I really believe that. That is not spin,” Carville said.

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These comments from James Carville are a testament to how shaken Democrats are after yesterday’s health care arguments, which didn’t appear to bode well for the administration. The political strategist told CNN that SCOTUS overturning Obama’s health care law would be the “best thing” that could ever happen to the Democratic Party. Right. Because having the president’s only noteworthy achievement invalidated about five months before his reelection is a sure recipe for political success.

“I think that this will be the best thing that ever happens to the Democratic party because health care costs are gonna escalate unbelievably,” Carville told CNN’s Wolf Blitzer of a possible Supreme Court decision to strike down the law. “I honestly believe this, this is not spin.”

“You know what the Democrats are going to say – and it is completely justified: ‘We tried, we did something, go see a 5-4 Supreme Court majority,’” Carville added. “The public has these guys figured out. Our polls show that half think this whole thing is political.”

“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5-4 and then the Republican Party will own the health care system for the foreseeable future. And I really believe that. That is not spin,” Carville said.

Carville’s probably correct to the extent that it will energize Democratic voters to get another liberal on the Supreme Court (though it’s not as if they weren’t already trying). But in terms of a general public campaign message, I’m not sure this is really very effective. Are we supposed to believe the average independent voter will suddenly be fired up to vote Democrat, based on the hope that there might be a chance to appoint a new justice in the next four years who will support the individual mandate? Considering the fact that the majority of Americans oppose the mandate, this seems highly unrealistic.

No matter how it’s spun, the Supreme Court striking down ObamaCare would be a major blow to the Democratic Party, just as it would be a blow to the Republican Party if the law was upheld in full. There are silver linings for both parties no matter what the outcome – for example, if ObamaCare is upheld, the only way for Americans to get rid of the unpopular law may be to vote Republican – but it’s a stretch to say that would be the best possible scenario for the GOP.

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Re: The Courts and Jerusalem

Jonathan Tobin makes a valuable point about the Zivotofsky case: the law giving Americans born in Jerusalem the right, if they want, to have the State Department put “Israel” on their passports as their place of birth reflects the fact the American people, through their elected representatives, have long recognized Jerusalem as the capital of Israel. The idea that American foreign policy would be adversely affected by letting Zivotofsky put “Israel” on his own passport is not a cogent thought.

Chief Justice Roberts’ masterful opinion (which attracted eight votes) provides a way out of the corner into which the administration has painted itself. Because the case will now return to the lower courts for further proceedings, the administration has an opportunity to reflect further on its legal strategy. There is a way in which everyone could win without further litigation – assuming President Obama is willing to learn from what President Clinton did in a similar situation.

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Jonathan Tobin makes a valuable point about the Zivotofsky case: the law giving Americans born in Jerusalem the right, if they want, to have the State Department put “Israel” on their passports as their place of birth reflects the fact the American people, through their elected representatives, have long recognized Jerusalem as the capital of Israel. The idea that American foreign policy would be adversely affected by letting Zivotofsky put “Israel” on his own passport is not a cogent thought.

Chief Justice Roberts’ masterful opinion (which attracted eight votes) provides a way out of the corner into which the administration has painted itself. Because the case will now return to the lower courts for further proceedings, the administration has an opportunity to reflect further on its legal strategy. There is a way in which everyone could win without further litigation – assuming President Obama is willing to learn from what President Clinton did in a similar situation.

In 1994, Congress directed the State Department to permit American citizens born in Taiwan to have “Taiwan” put on their passports as their place of birth, instead of the People’s Republic of China, despite American foreign policy recognizing the Communist regime as the only Chinese state. The State Department initially refused to comply on grounds it would adversely affect relations with China – but the Clinton administration eventually complied while issuing a statement that American foreign policy about “one China” remained unchanged.

That is exactly what Zivotofsky’s counsel, Nathan Lewin, suggested to the Supreme Court during oral argument:

This is not in our view a recognition case. This is a passport case. The question is, what goes on the passport, and may somebody self-identify? … If in fact the statute had said “we don’t say Jerusalem is part of Israel, but you can identify yourself as being in Israel,” my – we submit that result can very easily be achieved and was achieved in the case of Taiwan by a public statement by the executive.

The New York Sun notes that Zivotofsky’s case was brought on his behalf by his mother, who sought a passport for him after he was born in West Jerusalem (which has been Israel’s capital since 1950), and that Menachem has now been trying for most of his life to get a passport showing his place of birth as “Israel.” President Obama can decide to keep litigating – making this a huge constitutional issue that will go on for years, or he can adopt the Clinton precedent and end the case now, while issuing a statement that his foreign policy remains unchanged.

It is the obvious way out, but Obama may prefer to have the Justice Department keep litigating, rather than focus attention on his position on Jerusalem (which has been somewhat amorphous in the past and has involved web-scrubbing to boot) – particularly because he will likely be running against a Republican candidate promising to travel to Jerusalem as his first foreign trip, and who probably will not require a court decision for him to put “Israel” on Menachem Zivotofsky’s passport.

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A Bad Day in Court?

The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

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The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

The Washington Examiner’s Phil Klein reports the conservative justices seemed highly skeptical of the administration’s arguments during questioning, despite speculation that Chief Justice Roberts might rule in favor of upholding the law. Justice Kennedy, who is most likely to be the deciding vote, also appeared dubious:

Justice Anthony Kennedy, long seen as the swing vote in the case, repeatedly said that the mandate was unprecedented and that the government had a “heavy burden” to justify it. He said that it changed the relationship between the individual and the government in a “fundamental” way.

Also, one of the key arguments made by challengers in the case, is that earlier rulings of the Commerce Clause don’t apply here because the mandate forces people to enter the stream of commerce. On this point, Kennedy asked Obama’s Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”

The argument today centered on whether or not the individual mandate is a tax. The administration maintains it is a tax, which gives Congress the constitutional authority to implement it. By all accounts, the justices didn’t seem to accept that characterization of the mandate today. But of course, this is all speculation based on the questions and tone from the justices – which isn’t always an accurate indicator of where they stand – and there’s still another day of arguments tomorrow.

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A Very Fundamental Change

In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

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In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

If Justice Kennedy thinks this law changes the relationship between the federal government and individual citizens in a “very fundamental way,” how can he vote to uphold making that change by mere statute? The fundamental relationship between government and citizen can only be changed by changing the fundamental law that governs that relationship, i.e., the United States Constitution.

 

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The Courts and Jerusalem

While the country is riveted on the hearing on the constitutionality of ObamaCare, the Supreme Court handed down a ruling on Monday that was also significant. In an 8-1 decision, the high court ruled that a legal challenge to the State Department’s refusal to state on a child’s passport that he was born in Jerusalem, Israel, could proceed. The majority overturned a lower court decision that claimed Congress exceeded its authority when it passed legislation in 2002 requiring that Americans born in the city of Jerusalem be allowed to name Israel as their birthplace in official documents. While all this ruling did was to specify that the administration’s decisions on such questions are not beyond the scope of judicial review, it will allow the courts to try the case, a development that supporters of Israel’s claim to its capital cheered.

Ironically, the lawyers for those demanding the right to name Jerusalem as part of Israel argued that forcing the State Department to follow Congress’ instructions was merely a matter of clarifying a personal status issue rather than making foreign policy. That’s somewhat disingenuous, as the obvious intent of the lawsuit is to force the government’s hand. But though the administration is right to contend that the president has the power to make foreign policy decisions, the tangle over Jerusalem is a poor example of that principle. The question that must ultimately be decided is whether the executive has the power to directly override the law especially on a point where common sense is with the legislature.

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While the country is riveted on the hearing on the constitutionality of ObamaCare, the Supreme Court handed down a ruling on Monday that was also significant. In an 8-1 decision, the high court ruled that a legal challenge to the State Department’s refusal to state on a child’s passport that he was born in Jerusalem, Israel, could proceed. The majority overturned a lower court decision that claimed Congress exceeded its authority when it passed legislation in 2002 requiring that Americans born in the city of Jerusalem be allowed to name Israel as their birthplace in official documents. While all this ruling did was to specify that the administration’s decisions on such questions are not beyond the scope of judicial review, it will allow the courts to try the case, a development that supporters of Israel’s claim to its capital cheered.

Ironically, the lawyers for those demanding the right to name Jerusalem as part of Israel argued that forcing the State Department to follow Congress’ instructions was merely a matter of clarifying a personal status issue rather than making foreign policy. That’s somewhat disingenuous, as the obvious intent of the lawsuit is to force the government’s hand. But though the administration is right to contend that the president has the power to make foreign policy decisions, the tangle over Jerusalem is a poor example of that principle. The question that must ultimately be decided is whether the executive has the power to directly override the law especially on a point where common sense is with the legislature.

The case concerns one Menachem Zivotofsky, the son of American citizens living in Israel who was born in Jerusalem after Congress passed a law specifically stating that the State Department should list the children born in the city as being in Israel. While President Bush signed the bill after its passage, he stated at the time that he would not enforce it, and the Obama administration has continued this practice.

The conflict within the government is clear. In both 1995 and again in 2002, Congress clearly stated that it recognized a united Jerusalem as Israel’s capital. However, the United States has never formally recognized Israel’s claim to any part of the city, keeping its embassy in Tel Aviv and maintaining a separate consulate in the city. The administration, as did its predecessors, refuses to recognize Congress’ power to intervene in the decision regarding the recognition of countries and territories as being strictly a matter of executive privilege. The question is whether any court will be willing to state that Congress has the ability to create such a mandate over the objection of the president.

While the Zivotofskys will now get their day in court, they still claim they are not asking the judiciary to decide a foreign policy question. But that is exactly what they are doing, because the word “Israel” following the word “Jerusalem” on a U.S. passport will be a signal to the rest of the world of American recognition of the Jewish state’s claim to its capital.

But while any president has the right to conduct foreign policy, the right of Congress to set parameters within which the executive may operate is not unreasonable. In his risible sole dissent, Justice Stephen Breyer claimed that allowing Congress to override the president on such a matter may cause harm, the notion that the wisdom of a diplomatic position that denies reality — the fiction that Jerusalem has not always been Israel’s capital and that the unified city has been so for nearly 45 years — should be beyond the capacity of either the legislature or the courts. But this is a poor argument that does nothing to advance America’s interests or the law.

The direct intent of Congress here is not in question. The idea that great harm to the country would be done were the law to be enforced is not proven. Were the courts to allow the Zivotofskys’ challenge to be upheld, it would remind the world of something it should already be well aware: the American people through their elected representatives recognize that Jerusalem is part of Israel.

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Opposition to ObamaCare High Among Women, Youth

During the past year, opinion polls have consistently shown widespread public disapproval of President Obama’s health care reform law. The Hill has a new survey out reaffirming this, as the Supreme Court prepares to hear arguments on the constitutionality of the law later today.

The most interesting takeaway from the poll is that the disapproval for ObamaCare is spread across most voting demographics, including two key groups that Democrats have argued benefit most from the law: young people and women. From The Hill:

By a 52-percent-to-39-percent margin women are more opposed to it than men, who oppose it 48 percent to 45 percent, a difference that matches the poll’s 3-point margin of error. …

While even the youngest voters oppose the law (47 percent to 42 percent among those aged 18-39), opposition grows to 53 percent among voters aged 65 and older.

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During the past year, opinion polls have consistently shown widespread public disapproval of President Obama’s health care reform law. The Hill has a new survey out reaffirming this, as the Supreme Court prepares to hear arguments on the constitutionality of the law later today.

The most interesting takeaway from the poll is that the disapproval for ObamaCare is spread across most voting demographics, including two key groups that Democrats have argued benefit most from the law: young people and women. From The Hill:

By a 52-percent-to-39-percent margin women are more opposed to it than men, who oppose it 48 percent to 45 percent, a difference that matches the poll’s 3-point margin of error. …

While even the youngest voters oppose the law (47 percent to 42 percent among those aged 18-39), opposition grows to 53 percent among voters aged 65 and older.

While President Obama didn’t personally commemorate the two-year anniversary of his health care law last week, his campaign has been emphasizing the supposedly positive impact the law will have on women and young Americans. Obviously, the numbers in The Hill poll complicate that message. The fact that women are more likely to oppose the law than men is particularly interesting, and gives the GOP an opening to try to frame this as a women’s issue.

But the poll also bolsters one of the main arguments we may hear from Democrats if the Supreme Court does end up overturning the law or portions of it. While voters want to see the law repealed, they also believe the justices’ eventual decisions may be politically motivated:

Although voters want the Court to strike the law, they don’t necessarily trust the justices’ motivations. Fifty-six percent of likely voters believe the justices are swayed by their own political beliefs, while just 27 percent believe they “make impartial decisions based on their reading of the Constitution.”

Skepticism about the justices relying on their political beliefs ran consistently among age, racial and philosophical categories, with a majority of whites (54 percent), blacks (59 percent), Republicans (56 percent), Democrats (59 percent), conservatives (54 percent), centrists (56 percent) and liberals (59 percent) expressing the same viewpoint.

When people decry “judicial activism,” often they’re really using it as a euphemism for a decision they don’t like or don’t agree with. If the law is struck down, the health care issue will likely become an election-year motivator for Democratic voters, and the blame will no doubt be pinned on conservative activist judges.

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Majority Want SCOTUS to Scrap Mandate

The Supreme Court will hear arguments on President Obama’s health care law next week, and still an overwhelming majority of Americans say that the court should either scrap the mandate or the entire law:

This ABC News/Washington Post poll finds that Americans oppose the law overall by 52-41 percent. And 67 percent believe the high court should either ditch the law or at least the portion that requires nearly all Americans to have coverage.

The high court opens hearings on the law’s constitutionality a week from today.

The law has never earned majority support in ABC/Post polls – and this update, produced for ABC by Langer Research Associates, finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law lately; just 19 percent say the buzz has been positive. Even among its supporters, 53 percent are hearing more negatives than positives. Among opponents this soars to 88 percent.

As Chris Cillizza reports, Americans are set in their opinions on ObamaCare, which may be the big reason why Obama rarely talks about it in the context of his reelection.

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The Supreme Court will hear arguments on President Obama’s health care law next week, and still an overwhelming majority of Americans say that the court should either scrap the mandate or the entire law:

This ABC News/Washington Post poll finds that Americans oppose the law overall by 52-41 percent. And 67 percent believe the high court should either ditch the law or at least the portion that requires nearly all Americans to have coverage.

The high court opens hearings on the law’s constitutionality a week from today.

The law has never earned majority support in ABC/Post polls – and this update, produced for ABC by Langer Research Associates, finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law lately; just 19 percent say the buzz has been positive. Even among its supporters, 53 percent are hearing more negatives than positives. Among opponents this soars to 88 percent.

As Chris Cillizza reports, Americans are set in their opinions on ObamaCare, which may be the big reason why Obama rarely talks about it in the context of his reelection.

Since the law was passed, opposition has remained near the low 50s, while support has remained near the low 40s. And of course the opposition climbs higher when you specifically ask about the individual mandate.

What’s interesting is that while Obama’s most significant legislative achievement provides him with little-to-no political advantage on the campaign trail, Republicans will be able to benefit from it no matter how the Supreme Court rules. If the Court deems the law, or parts of the law, unconstitutional, then the GOP will have that as a bludgeon. And even if the Court upholds the law in its current form, there’s still widespread public opposition to the mandate. The only way to get rid of it at that point would be to replace Obama with a Republican, which would be an added incentive to vote GOP.

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Standing Respectfully But Staying Mute

It’s worth wondering whether the non-controversy over the decision by an Israeli Supreme Court justice to not sing “Hatikvah,” Israel’s national anthem, last week is worth the space of a full article. But Ethan Bronner’s fair-minded and sober treatment of the issue recently in the New York Times does highlight something very important: the way in which Israel and Israelis usually successfully navigate the fault lines that do exist in a state both Jewish and democratic.

The justice in question, Salim Joubran, is a Christian Arab, and the first Arab appointed to a permanent seat on Israel’s highest court. In a publicly televised ceremony marking the retirement of the current chief justice and the installation of the next, Joubran stood but did not sing the words to the national anthem, which includes within it a reference to a “yearning Jewish soul” and focuses quite explicitly on the long Jewish dream to return to political independence in the Land of Israel.

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It’s worth wondering whether the non-controversy over the decision by an Israeli Supreme Court justice to not sing “Hatikvah,” Israel’s national anthem, last week is worth the space of a full article. But Ethan Bronner’s fair-minded and sober treatment of the issue recently in the New York Times does highlight something very important: the way in which Israel and Israelis usually successfully navigate the fault lines that do exist in a state both Jewish and democratic.

The justice in question, Salim Joubran, is a Christian Arab, and the first Arab appointed to a permanent seat on Israel’s highest court. In a publicly televised ceremony marking the retirement of the current chief justice and the installation of the next, Joubran stood but did not sing the words to the national anthem, which includes within it a reference to a “yearning Jewish soul” and focuses quite explicitly on the long Jewish dream to return to political independence in the Land of Israel.

Bronner found intemperate voices on both the right and left who sharpened their swords over the non-event, with Haaretz seeing it as another opportunity to impugn the Jewish character of the state as inherently discriminatory. Yet Bronner also wrote, “Most Israeli Jews, however, seemed to feel comfortable with Justice Joubran’s approach — standing respectfully but staying mute.” In other words, they seem to know instinctively that it is appropriate for a democracy to align its identity with that of the majority of its citizens, but that it must also make allowances for those who do not share that identity.

For his part, Joubran – who holds a position in Israeli society he is likely to find thankless far too often -  seemed to hit the right balance in his approach. There is no use denying that identification with the lyrics of “Hatikvah” may be impossible for fair reasons for non-Jewish citizens of Israel. But it is not too much for that state – on a cultural level – to ask that all its citizens and its public officials in particular still show the anthem appropriate respect, which standing in silence certainly does.

Where Bronner and Noah Kleiger, the Israeli commentator he quotes, go wrong is in their depiction of the Israeli case as unique. Kleiger may think that “Any British or French citizen – regardless of whether he is Muslim, Buddhist, Christian or Jewish – can utter the words ‘God Save the Queen’ without a problem, because these words are suitable for everyone,” but he should ask atheists (or even those not quite comfortable with the idea that the Queen’s role as head of the British state and the Anglican church is God-given) whether or not they feel the same. Like the Israeli anthem, the British one makes specific claims about the identity of the British state, and it is an identity not shared by all British citizens. As in Israel, none of it makes the country any less free or democratic.

So if you’ve taken a moment to consider the extremely minor affair of Salim Joubran and the singing of “Hatikvah,” use it to consider well the way in which Israel continues to do a fine job of living up to its billing that it is both Jewish and democratic, regardless of what the critics have to say.

 

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