APRIL 4, 2012 9:04PM

Are Obama's Remarks On the Court "Unprecedented?" Hardly, If

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President Obama is coming under a lot of heat for his remarks that for the Court to overturn Obamacare would be "unprecedented."

Of course at one level that is absurd from a Constitutional law professor, since he knows full well and in disgusting detail almost every single case in which the Court has in fact overturned an act of Congress.

Moreover, as something of a judicial activist in philosophy himself, he likes the Courts to do that when it suits him.

So, the President is a politician: big surprise.

That's why he's the President, since he's got top shelf game, and only vaguely resembles an aging Yerkel as to being Mr. Rogers, to mix races with metaphors.

In fact, not only has the Court overturned much legislation by the Congress, therefore making it precedented to the Nth degree, but, in defense of the President, Presidents in the past have complained about that vociferously too, making his call of "unprecedented" hardly "unprecedented," for all the virgins there are in Babylon on the Potomac.

There's nothing new under the Sun in this, although the President has to watch the political reaction, as that did blow up in Roosevelt's face in 1937, when he really pushed complaining about "unprecedented" overturning of Congressional acts by a "conservative" judiciary.

It depends in part on whose ox is getting gored, although that's the virtue of the Original Intent, as to useful fictions that impart stability, even if it's not literally always true, but still implies more continuity than people just switching sides on an argument, which is what some people thought of a certain Supreme Court decision in 2000.

In defense of the President, it is true that when the Court reaches really far, that's where things can get really nasty politically, like in Dredd Scott as that opinion had inflamatory and gratuitous language as to the issue of the day, and arguably Roe v. Wade as overbroad and premature, again, whose ox is getting gored telling much of the tale as usual, if Original Intent does have what Rochefoucauld said as to imparting order and stability: hypocrisy is the tribute that vice pays to virtue.

finis

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It's possible he was misled by a political advisor--Axelrod?--who told him to just read prepared remarks. I don't think that was the case. If it were and he knows basic constitutional law (not altogether clear this is so) he would have departed from his text. I believe, based on remarks made by UofC colleagues such as Richard Epstein, that he really is more of a political scientist that a constitutional scholar, i.e., he thinks it all comes down to which President appointed a justice. Random pop quiz: ask him what he thinks of Erie v. Tompkins R.R., another case of import equal to Marbury.

On Tuesday he followed up, trying to make his mistake disappear, by mis-citing Lochner v. New York as the last time the Court struck down an act of Congress on economic regulation.

Duh--every first year law student knows that case involved a New York statute.
Hi Con. I'll have to look up Epstein, as most people won't talk, like its the mafia, although academia is kind of like that as to "don't speak ill of other folks in front of students."
Maybe some reporter is going to cook his goose on Erie, although who knows that? Got me off the top of my head, although I did know the difference between statute and procedure in diversity cases, you old dog. :)
In his defense, Lochner is usually cited as a limitation on what judges ought to be doing nowadays, if of course it was a state case. Usually the cases people really don't like are Dred Scott, Plessy, Lochner, the NRA cases that generated the switch in time that saved nine after your four tops proposal, and Roe, if few go all the way and pick all of those as to Original Intent.
There is a politics to it, although it can be dangerous too, as if its mainly politics, then there is no stability to expectations in the law.
I have never understood why the Left doesn't get that, not ever.
I have never understood the enthusiasm for unmooring the law, not ever.
I think the over-riding considerati0n, Don, is: There is no such thing as "bad publicity."

For the last few months, all the talk has been about the clowns vying for the Republican nomination.

This week the talk is about Barack Obama.
Our whole govenment has gone rogue since 911, passing and unholding whatever sacrilidge to the Bill of Rights they can think of, like post Reichstag-bombed Germany. Virtually all of them passed HR 347, for example, demonstrating the mass popularity of treason in Congress and the White House and an inability or understanding of peaceful assembly and due process. They should all be deported as traitors.
I am so glad I don't watch cable news, where I suspect most of this flap is generated. At this point, I hate politics, and the broadcast media, but I like and respect Obama, where he errer or not in this matter. As usual, a tempest in a teapot.
He's playing a game here I think Frank, to see how much mileage he can get out of it no matter which way the Court rules; cake and eating.
Well, of course he makes political calculations, but I have not ever seen them override his primary set of values, which are positive. Also, I would not be quick to put this on Axelrod. Obama makes his own final decision. And it is the right-wing that bases EVERYTHING on political calculations, because they are sociopathic, in my view.
I also suspect that that sentence was taken out of context. I did not hear the speech, though.
I bet he was a brilliant editor of the Law Review Baltimore, it's just rather a different kettle of fish than being a politician. Two radically different worlds, that having interacted with the political from the academic side of things, I would give him some props as to being a good politician in the sense of reading games well. I would never underestimate that aspect of anyone who gets that far.
For example, W. I think loved to taunt liberal elites with his verbal faux pas, as that makes him look dumber, and therefore more approachable to average voters, since his IQ was 129 Air Force, top 97.5 per cen of that age cohort, while making the 130 and ups that dominate academia angry that it's the "dummy" not him. He knew what he was doing lots more I think than he gets credit for, it's just that some people didn't like it very much, maybe for good reasons, maybe not.
The point is that when you draw attention to your person in a way that makes people think about your person, then you distract them, at least potentially, and maybe unconsciously, from what the real objectives are.
Maybe that's cynical, but a great read on this topic, The 48 Laws of Power, has some real truth to it too: Always Seem Dumber Than Your Mark.