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April 03, 2012

Extraordinary!!! Unprecedented!!!

Back in September of 2008, the Editorial Staff rejoiced at the prospect of a glorious new era of constitutional erudition ushered in by Real Men of Legal Genius:

The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It's the first time that professors of constitutional law have occupied both slots on a ticket. Barack Obama was a senior lecturer at the University of Chicago Law School, and Joe Biden has been an adjunct professor at Widener University School of Law since 1991. More to the point, it's the most civil-libertarian ticket ever fielded by a major U.S. political party.

So one might imagine our surprise to awaken to what is quite possibly the most incoherent statement ever, uttered by none other than The Constitutional Law Prof in Chief:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

Let's walk through this remarkable quote step by step. Would it be unprecedented or extraordinary for the Supreme Court to declare an Act of Congress unconstitutional? Only if one arbitrarily changes the meaning of "unprecedented" from "something that has never happened before" to "something for which there are lots of precedents":

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

But wait! The Affordable Care Act (unlike many federal laws passed by a minority of legislators) was passed by a majority. We are not quite sure what the voting margin has to do with the issue of whether or not a law violates the Constitution, but let's put that aside for a moment. If that's not enough to convince you, it is undeniable that the legislators who passed the ACA were elected democratically (as opposed to undemocratically elected legislators, often referred to colloquially as "Republicans").

But the President wasn't done ensmartening the unwashed masses yet. It was time to remind the nation how incredibly hypocritical it is for politicians to suddenly embrace arguments they previously rejected as wrong or unprincipled:

And 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.

We must admit that this tack confuses and frightens us, but then we are not a Constitutional Law Professor. Is the President saying that conservatives were wrong to object to "unelected" jurors (as opposed to the elected kind) overturning acts of Congress? If this argument was bogus when conservatives advanced it, how did it suddenly become valid?

Or is our Constitutional Law Prof in Chief slying suggesting that conservatives were right about judicial activism all along?

We just wish we were smart enough to understand all this high falutin' legal talk. One thing seems certain though. Had George Bush uttered these words, the media would be going on and on about the Dumbest President Evah.

Fortunately, with Barack at the helm we'll only have to endure weeks of the media telling us what the Great Communicator really meant to say.

Posted by Cassandra at April 3, 2012 06:24 AM

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I'm just a caveman. Your world frightens and confuses me!

Whatever world you're from, I do know one thing - in the 3+ years from January 20th, 2009, when he first attempted to repeat the Oath of Office, a couple of times, until today, when he issued an EO declaring the U.S. Constitution too old, archaic, and just too hard to read and understand, much less follow, our POTUS has been in and continues to sink further into a state that is best described as inane.

For that reason, I ask that you, ladies, gentlemen, citizens, villains, anyone with a measurable electroencephalograph, find him not fit for the job by reason of not only his failures, but also the insanity of those who believe and support his preposterous pronouncements. The longest journey... one step and all that.

Thank you.

Oh! Look over there! A media distraction...

Posted by: Cirroc at April 3, 2012 09:44 AM

I'm beginning to think he studied constitutional law for the same reasons I studied communism - To better understand ones enemies.

His posturing at the Supreme Court speaks volumes. How dare they (potentially) disagree with him?

Posted by: Pogue at April 3, 2012 10:02 AM

Maybe he'll try to eliminate them by Executive Order

Posted by: tomg51 at April 3, 2012 10:21 AM

The Court has [overturned Congress' law] 165 times, as of 2010.

You, and your quotee, misunderstand, Ma'am. The first such overturn occurred more than one hundred years ago, and so it, as Ezra Klein has so eloquently put it, "has no binding power on anything. ...the text is confusing because it was written more than a hundred years ago."

Thus, since the precedential precedent is invalid, so is the whole, sorry chain of "precedents." We filosofers refer to this technically as "arguing from a false precedent."

Moreover, as the erstwhile Speaker of the House has pronounced, it's Constitutional because the Congress passed it.

An aside: ...when he first attempted to repeat the Oath of Office....

Actually, it was the Justice who was attempting to administer the oath.

Eric Hines

Posted by: E Hines at April 3, 2012 11:16 AM

"Actually, it was the Justice who was attempting to administer the oath."
True enough...

In his defense, C.J. Roberts must have fixated on the infamous trouser creases.

Posted by: Cirroc at April 3, 2012 12:13 PM

I make a prediction:
By summer, gasoline will be at $8/gal heading towards $10+; during Congress' summer recess (not that it matters) he will expand SOTUS to 15, using recess appointments to fill the spots; citing the high price of gasoline, he will seize the oil companies using his recent EO as authority; SOTUS will agree with the 'constitutionality' of the seizure; then in early November he will invoke the remainder of his EO, suspend the constitution (not that it ever mattered anyway), and request assistance from Putin to help installing him as a permanent President.
I once took an oath to '...uphold and defend...' and I don't remembering it coming with an expiration date.

Posted by: Grumpy Curmudgeon at April 4, 2012 06:47 AM