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Obama Threatens The Court

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The president showed a bit of “Chicago rules” for SCOTUS yesterday, which should push any wavering anti-Obamacare justice into the “strike-it-all-down” camp. It is truly a remarkable thing for the POTUS to ramble on about the SCOTUS, but we saw it before in the 2010 State of the Union, and we will hear all about it throughout the summer and fall, and Obama tries to make the Court’s exercise of its authority to “say what the law is” yet another occasion for wrecking yet another institution.

The Wall Street Journal has a piece on this absurd bit of editorializing. Senator Kyl has a piece in today’s Wall Street Journal on this absurdity. I interviewed Senator Jon Kyl about the president’s absurd and stilted remarks –“duly constituted law”?– and that transcript is here. (Kyl also has an important piece in the Journal on the president’s tete-a-tete with Russia’s Medvedev.) Read the whole thing for updates on spending and missile defense, but here’s the key exchange on the president’s assault on the Court:

HH: Well, I want to start with you by playing for you something the President said, and I remind everyone that Senator Kyl’s been on Judiciary for as, have you been on it for all eighteen years?

JK: Yes, I have.

[# More #]

HH: Okay, so eighteen years of Judiciary hearings, and here is what the President of the United States said today about the Supreme Court hearing last week.

BHO: I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.

HH: What do you think of that, Senator Kyl (laughing)?

JK: Well, the Wall Street Journal had a great lead editorial this morning answering that question. Liberals are very happy when the Supreme Court strikes down things that they don’t like. And they, of course, don’t call that judicial activism at all. And the Journal gave numerous examples of that, hailed by the Democrats as forward thinking, and the living Constitution, and all the rest of it you’re familiar with. But if the Court ever says Congress has gone too far here in stretching its authority under the Commerce Clause, whoa, couldn’t have that. That would be judicial activism. No, judicial activism in this case would be to affirm that the Congress has a right that the founders never intended it to have, namely to force people to buy something to create commerce so that then Congress can regulate it. That would be judicial activism.

HH: Senator Kyl, obviously you’ve hashed out the Commerce Clause jurisprudence issue many times in confirmation hearings. And given that background, what did you make of the arguments last week?

JK: You know, it’s hard to, obviously, nobody’s making predictions based upon the questions of the justices, but it’s clear that they were very much up on the arguments, they’d read the briefs, they were familiar with them, and it seemed like they were internalizing some of the points that were made there. But don’t read anything into a specific question by a specific justice is I guess what I would say. But they did focus very specifically on this question of whether you can create commerce in order to regulate it. That’s never been done before. It would be judicial activism for the Court to permit that. And in effect, the Court invited the lawyers for the government to draw a line to show some line that would be impermissible for the government to cross. They couldn’t do that.

HH: Now of course, when the President says a duly constituted law, that’s gobbledygook. Every law that’s ever been struck down has gone through both sides of the Congress and signed by the President, or overridden a veto.

JK: Sure.

HH: So that’s just absurd.

JK: Well, of course, and this law was adopted by the slimmest of majorities. Remember that when Scott Brown was elected to the U.S. Senate, the Democrats then lost the ability to pass the second piece of the law. And as a result, they had to resort in this procedural gimmick, in effect, with control of the House of Representatives in their hands at that time, with a reconciliation budget process, which then enabled them, with merely 51 votes, to get the second half of that passed by the U.S. Senate, because they no longer had the 60 vote margin. So this is a law that was very unpopular at the time, and it remains at least as unpopular as it was then, by at least a 2-1 majority of the American people.

HH: Now Senator Kyl, in addition to the President’s rather absurd statements today, he’s engaged in some not very absurd but very radical conduct including appointing people to jobs using his recess appointment authority when your body wasn’t actually in recess. What did you make of those?

JK: Well, that, too, will be litigated. The Republican Senators have all agreed to sign onto a brief that will argue the Senate’s position, which is we define when we are in recess. The President can’t do that. And it has always been the tradition that if you are just over a weekend, for example, less than three days is basically the tradition, the tradition that Harry Reid himself, the Democratic leader, has adhered to in the past when President Bush was in a position to do the same thing that President Obama did here, but did not do so. And so that question will be litigated. I think the Senate’s position will be vindicated. And I do think the hypocrisy of some of our Democratic friends here is pretty stunning, when on the one hand, they’re willing to say they get to define what a recess is when President Bush is in office, but once President Obama is here, take the lid off the pot and let him do whatever he wants.


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