Rubinstein: The Imperial Obama Administration
Thursday, July 12, 2012
By: Reed Rubinstein
The term “Imperial Presidency” became popular in the 1960s, and served as the title of a 1973 volume by historian Arthur M. Schlesinger, Jr. to describe the modern presidency of the United States. Schlesinger’s argument was that the Presidency and the Executive Branch had grown entirely out of control and that all constitutional limits on Executive Power had been lost. His real target, of course, was the Nixon Administration.
Leftist opponents of George W. Bush resurrected the “imperial Presidency” charge, claiming that the Bush Administration had slipped the constraints of constitutional limits with respect to its war-making authority in Iraq. As one critic wrote in a July, 2007 New York Times op-ed: “Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called ‘the foetus of monarchy.’” Yet, for the most part, the Bush Administration was appropriately deferential to Congress and the courts, and the left’s “imperial Presidency” claims lacked substantial foundation.
The mantle of an imperial Presidency, however, sticks tightly to Barak Obama. In truth, the Obama Presidency has been absolutely Nixonian in its disregard for constitutional limits and uniquely disrespectful for the authority of Congress and the judiciary. Here are only a few examples:
Reed Rubinstein is a shareholder in the Washington, D.C. office of Dinsmore & Shohl LLP and a member of the RJC's Leadership Council. The views expressed here are solely his own.
By: Reed Rubinstein
The term “Imperial Presidency” became popular in the 1960s, and served as the title of a 1973 volume by historian Arthur M. Schlesinger, Jr. to describe the modern presidency of the United States. Schlesinger’s argument was that the Presidency and the Executive Branch had grown entirely out of control and that all constitutional limits on Executive Power had been lost. His real target, of course, was the Nixon Administration.
Leftist opponents of George W. Bush resurrected the “imperial Presidency” charge, claiming that the Bush Administration had slipped the constraints of constitutional limits with respect to its war-making authority in Iraq. As one critic wrote in a July, 2007 New York Times op-ed: “Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called ‘the foetus of monarchy.’” Yet, for the most part, the Bush Administration was appropriately deferential to Congress and the courts, and the left’s “imperial Presidency” claims lacked substantial foundation.
The mantle of an imperial Presidency, however, sticks tightly to Barak Obama. In truth, the Obama Presidency has been absolutely Nixonian in its disregard for constitutional limits and uniquely disrespectful for the authority of Congress and the judiciary. Here are only a few examples:
- The Obama administration committed US troops to combat operations against Libya on the basis of a UN Security Council resolution but without Congressional resolution, approval or sanction, contrary to the Constitution and the War Powers Act.
- In April 2012, the Obama Administration bypassed Congress to fund the Palestinian Authority via a waiver stating the aid was "important to the security interests of the United States." The $192 million aid packagewas frozen by Congress after the Palestinians moved to gain statehood at the United Nations in September 2011.
-
By administrative order, the Administration halted deportations of illegal aliens contrary to the laws of the United States. - President Obama has attacked the authority and legitimacy of the Supreme Court in a manner and fashion without parallel in the post-war period. Opposed to an expansive definition of free speech, Obama took the unprecedented step of criticizing the Supreme Court during a State of the Union address. Then, when it became clear that the Court had serious doubts regarding the constitutionality of the Administration’s signature health care bill, the Administration launched a concerted and calculated effort to influence the Court by threatening to undermine its basic legitimacy. To begin with, the Administration needed unprecedented and corrosive procedural gamesmanship by Congressional leaders to enact Obamacare. Then, the President publicly warned the Court, in the midst of deliberations, that it “would be an unprecedented, extraordinary step” to find the law unconstitutional and influential political voices began urging the President to run a tough political campaign against the Court if Obamacare was overturned.
- In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act, which bars federal recognition of same-sex marriages, against constitutional challenges. DOMA was and remains a valid statutory enactment by the Congress.
- Mr. Obama bypassed the Senate confirmation process to install four officials using his recess appointment powers, even though the Senate was in pro forma session.
- The Administration "cooked" the auto bailout to benefit political supporters at the expense of statutorily protected bondholders without changing existing law. In the years leading up to the economic crisis, Chrysler had been unable to acquire routine financing and so had been forced to turn to so-called secured debt in order to fund its operations. Secured debt takes first priority in payment; it is also typically preserved during bankruptcy under what is referred to as the "absolute priority" rule — since the lender of secured debt offers a loan to a troubled borrower only because he is guaranteed first repayment when the loan is up. In the Chrysler case, however, creditors who held the company's secured bonds were steamrolled into accepting 29 cents on the dollar for their loans. Meanwhile, the underfunded and unsecured pension plans of the politically connected United Auto Workers were paid more than 40 cents on the dollar. This was unprecedented.
- The Administration has waived "No Child Left Behind" requirements contrary to statutory provisions.
- In his first week in office, Obama issued an executive order to close Guantanamo Bay prison in Cuba, another to restore taxpayer funding of overseas abortion groups and one more to lift a ban on taxpayer funding of research using stem cells from human embryos. Later, when a federal judge struck down the stem cell executive order, Obama’s National Institutes of Health issued new guidelines for researchers that suggested they could basically ignore the judge’s ruling.
- The Administration has waived "Obamacare" requirements for favored companies and unions. There are no fixed standards for these waivers.
- After the Employee Free Choice Act—designed to bolster labor unions’ dwindling membership rolls—was defeated by Congress, the National Labor Relations Board announced a rule that would implement "snap elections" for union representation, limiting employers’ abilities to make their case to workers and virtually guaranteeing a higher rate of unionization at the expense of workplace democracy. This was quickly struck down by the courts.
- After an Internet regulation proposal failed to make it through Congress, the Federal Communications Commission announced that it would regulate the Web by order. This has been challenged in court.
- According to Politico, the Administration appointed at least 30 "czars to formulate and implement policy. Only five of these were subject to Congressional confirmation. None of the czars for "green jobs," "climate change," executive payments, healthcare, energy and environment, and science were vetted by Congress. Congress moved to rein the Administration in through its budget authority. However, President Obama in his signing statement regarding H.R. 1473, the FY 2011 Budget Bill, stated that section 2262 of H.R. 1473, which bars the expenditure of funds for four named White House staff positions, would be ignored.
- The Administration has repeatedly bypassed Congress, using executive orders, agency guidance and collusive lawsuit settlements, to implement environmental regulations. Specific examples are greenhouse gas regulation, expansion of Clean Water Act jurisdiction, chemical regulations, regulation of Chesapeake Bay stormwater runoff, reconsideration of national ambient air quality standards (NAAQS) for ozone, reversal of the California Waiver, retroactive veto of Arch Coal’s Clean Water Act permit for Spruce Mine No. 1, and overriding West Virginia’s water permitting authority to further burden the coal industry. The administration’s fuel economy standards, which can be viewed as the regulatory equivalent of declaring war on carmakers, were invoked without Congressional involvement, in a clear departure from past precedent when Congress has set the standards and the EPA has implemented them. This time, the EPA is doing both.
Reed Rubinstein is a shareholder in the Washington, D.C. office of Dinsmore & Shohl LLP and a member of the RJC's Leadership Council. The views expressed here are solely his own.
Rubinstein: The Imperial Obama Administration
Thursday, July 12, 2012
By: Reed Rubinstein
The term “Imperial Presidency” became popular in the 1960s, and served as the title of a 1973 volume by historian Arthur M. Schlesinger, Jr. to describe the modern presidency of the United States. Schlesinger’s argument was that the Presidency and the Executive Branch had grown entirely out of control and that all constitutional limits on Executive Power had been lost. His real target, of course, was the Nixon Administration.
Leftist opponents of George W. Bush resurrected the “imperial Presidency” charge, claiming that the Bush Administration had slipped the constraints of constitutional limits with respect to its war-making authority in Iraq. As one critic wrote in a July, 2007 New York Times op-ed: “Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called ‘the foetus of monarchy.’” Yet, for the most part, the Bush Administration was appropriately deferential to Congress and the courts, and the left’s “imperial Presidency” claims lacked substantial foundation.
The mantle of an imperial Presidency, however, sticks tightly to Barak Obama. In truth, the Obama Presidency has been absolutely Nixonian in its disregard for constitutional limits and uniquely disrespectful for the authority of Congress and the judiciary. Here are only a few examples:
Reed Rubinstein is a shareholder in the Washington, D.C. office of Dinsmore & Shohl LLP and a member of the RJC's Leadership Council. The views expressed here are solely his own.
By: Reed Rubinstein
The term “Imperial Presidency” became popular in the 1960s, and served as the title of a 1973 volume by historian Arthur M. Schlesinger, Jr. to describe the modern presidency of the United States. Schlesinger’s argument was that the Presidency and the Executive Branch had grown entirely out of control and that all constitutional limits on Executive Power had been lost. His real target, of course, was the Nixon Administration.
Leftist opponents of George W. Bush resurrected the “imperial Presidency” charge, claiming that the Bush Administration had slipped the constraints of constitutional limits with respect to its war-making authority in Iraq. As one critic wrote in a July, 2007 New York Times op-ed: “Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called ‘the foetus of monarchy.’” Yet, for the most part, the Bush Administration was appropriately deferential to Congress and the courts, and the left’s “imperial Presidency” claims lacked substantial foundation.
The mantle of an imperial Presidency, however, sticks tightly to Barak Obama. In truth, the Obama Presidency has been absolutely Nixonian in its disregard for constitutional limits and uniquely disrespectful for the authority of Congress and the judiciary. Here are only a few examples:
- The Obama administration committed US troops to combat operations against Libya on the basis of a UN Security Council resolution but without Congressional resolution, approval or sanction, contrary to the Constitution and the War Powers Act.
- In April 2012, the Obama Administration bypassed Congress to fund the Palestinian Authority via a waiver stating the aid was "important to the security interests of the United States." The $192 million aid packagewas frozen by Congress after the Palestinians moved to gain statehood at the United Nations in September 2011.
-
By administrative order, the Administration halted deportations of illegal aliens contrary to the laws of the United States. - President Obama has attacked the authority and legitimacy of the Supreme Court in a manner and fashion without parallel in the post-war period. Opposed to an expansive definition of free speech, Obama took the unprecedented step of criticizing the Supreme Court during a State of the Union address. Then, when it became clear that the Court had serious doubts regarding the constitutionality of the Administration’s signature health care bill, the Administration launched a concerted and calculated effort to influence the Court by threatening to undermine its basic legitimacy. To begin with, the Administration needed unprecedented and corrosive procedural gamesmanship by Congressional leaders to enact Obamacare. Then, the President publicly warned the Court, in the midst of deliberations, that it “would be an unprecedented, extraordinary step” to find the law unconstitutional and influential political voices began urging the President to run a tough political campaign against the Court if Obamacare was overturned.
- In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act, which bars federal recognition of same-sex marriages, against constitutional challenges. DOMA was and remains a valid statutory enactment by the Congress.
- Mr. Obama bypassed the Senate confirmation process to install four officials using his recess appointment powers, even though the Senate was in pro forma session.
- The Administration "cooked" the auto bailout to benefit political supporters at the expense of statutorily protected bondholders without changing existing law. In the years leading up to the economic crisis, Chrysler had been unable to acquire routine financing and so had been forced to turn to so-called secured debt in order to fund its operations. Secured debt takes first priority in payment; it is also typically preserved during bankruptcy under what is referred to as the "absolute priority" rule — since the lender of secured debt offers a loan to a troubled borrower only because he is guaranteed first repayment when the loan is up. In the Chrysler case, however, creditors who held the company's secured bonds were steamrolled into accepting 29 cents on the dollar for their loans. Meanwhile, the underfunded and unsecured pension plans of the politically connected United Auto Workers were paid more than 40 cents on the dollar. This was unprecedented.
- The Administration has waived "No Child Left Behind" requirements contrary to statutory provisions.
- In his first week in office, Obama issued an executive order to close Guantanamo Bay prison in Cuba, another to restore taxpayer funding of overseas abortion groups and one more to lift a ban on taxpayer funding of research using stem cells from human embryos. Later, when a federal judge struck down the stem cell executive order, Obama’s National Institutes of Health issued new guidelines for researchers that suggested they could basically ignore the judge’s ruling.
- The Administration has waived "Obamacare" requirements for favored companies and unions. There are no fixed standards for these waivers.
- After the Employee Free Choice Act—designed to bolster labor unions’ dwindling membership rolls—was defeated by Congress, the National Labor Relations Board announced a rule that would implement "snap elections" for union representation, limiting employers’ abilities to make their case to workers and virtually guaranteeing a higher rate of unionization at the expense of workplace democracy. This was quickly struck down by the courts.
- After an Internet regulation proposal failed to make it through Congress, the Federal Communications Commission announced that it would regulate the Web by order. This has been challenged in court.
- According to Politico, the Administration appointed at least 30 "czars to formulate and implement policy. Only five of these were subject to Congressional confirmation. None of the czars for "green jobs," "climate change," executive payments, healthcare, energy and environment, and science were vetted by Congress. Congress moved to rein the Administration in through its budget authority. However, President Obama in his signing statement regarding H.R. 1473, the FY 2011 Budget Bill, stated that section 2262 of H.R. 1473, which bars the expenditure of funds for four named White House staff positions, would be ignored.
- The Administration has repeatedly bypassed Congress, using executive orders, agency guidance and collusive lawsuit settlements, to implement environmental regulations. Specific examples are greenhouse gas regulation, expansion of Clean Water Act jurisdiction, chemical regulations, regulation of Chesapeake Bay stormwater runoff, reconsideration of national ambient air quality standards (NAAQS) for ozone, reversal of the California Waiver, retroactive veto of Arch Coal’s Clean Water Act permit for Spruce Mine No. 1, and overriding West Virginia’s water permitting authority to further burden the coal industry. The administration’s fuel economy standards, which can be viewed as the regulatory equivalent of declaring war on carmakers, were invoked without Congressional involvement, in a clear departure from past precedent when Congress has set the standards and the EPA has implemented them. This time, the EPA is doing both.
Reed Rubinstein is a shareholder in the Washington, D.C. office of Dinsmore & Shohl LLP and a member of the RJC's Leadership Council. The views expressed here are solely his own.
Litch: Roberts’ Folly?
Tuesday, July 03, 2012
By: C. Scott Litch
Some argue that Chief Justice Roberts was a genius for putting health care reform back into the political area, recasting the individual mandate as only viable under the taxing power vs. the commerce clause, and keeping the academic and media elite from carping about the illegitimacy of the Supreme Court.
There is no question that the Court’s decision puts the issue of repeal and replace squarely back in the political arena. However, there are several flaws in the “Roberts is a genius” line of reasoning.
First, why should the Chief Justice worry about elite moaning and groaning if he believed the individual mandate was unconstitutional? The mandate as a tax argument lacks merit, as sharply noted in the minority opinion. If the Supreme Court has a teachable moment to undercut the elitist notion that the Constitution places no limits on the federal government’s power, shouldn’t the Chief Justice be bold and courageous enough to make that argument? He might have faced the ire of many law professors, but likely would have the support of a majority of American citizens. Why should the conservative bloc on the court receive opprobrium for their interpretation of the Constitution when the liberal bloc is always ready to vote yes for any expansive reading of the Constitution that supports liberal social policy and the increase of government power? I would argue that a decision to overturn the law would have equally and fairly offered Americans a valid electoral choice. If you want a President to appoint justices who view the Constitution as posing no limits on government power, by all means re-elect Obama. If you want justices who understand the Constitution as imposing constraints, vote for Romney. Further, a ruling of unconstitutionality would also have put the legislative policy decisions squarely in play, as there would certainly be a vastly different approach between Congressional Democrats and Republicans as to the appropriate “replacement legislation.”
Second, if the Chief Justice really believed the law was unconstitutional, it is especially unseemly for him to engage in such a Machiavellian maneuver. Won’t this increase cynicism and decrease respect for the Court more than the impact of a 5-4 opinion striking down the law? The Court as an institution would surely have survived such as outcome.
Politically, the opinion hands the President a huge political victory. He and his supporters can argue that conservatives were off base in challenging the law’s constitutionality and wasted a lot of time and money in doing so. It gives legitimacy to the notion that, despite Roberts’ opinion, there is really no limit on the reach of the federal government. That the government cannot mandate a person to purchase a product by imposing a civil or criminal penalty, but can tax that individual if he or she does not purchase the product, is a distinction that seems without merit and without posing any real limit on government power.
Why do conservative justices have to yield to pressure to find a “middle ground” and compromise when there is never similar pressure on the four liberal justices to break their monolithic approach? When Roberts presumably could not convince a single one of these four justices to switch sides, why do they deserve special consideration for the Chief Justice to bend over backwards to support their expansionist reading of the Constitution? I fear ultimately the decision is just the next step on America’s slide towards a European style social welfare state, which is surely Obama’s goal. He has every right to argue that case, but not to expect the Supreme Court to ignore Constitutional restraints which we had thought separated America from the worse excesses of European-style big government socialism.
Roberts in his confirmation hearings said he considered a judge to be the “umpire.’ As Rich Lowry of National Review points out, in this case apparently the umpire blinked. And we may all be paying the price for this blinking for many years to come.
By: C. Scott Litch
Some argue that Chief Justice Roberts was a genius for putting health care reform back into the political area, recasting the individual mandate as only viable under the taxing power vs. the commerce clause, and keeping the academic and media elite from carping about the illegitimacy of the Supreme Court.
There is no question that the Court’s decision puts the issue of repeal and replace squarely back in the political arena. However, there are several flaws in the “Roberts is a genius” line of reasoning.
First, why should the Chief Justice worry about elite moaning and groaning if he believed the individual mandate was unconstitutional? The mandate as a tax argument lacks merit, as sharply noted in the minority opinion. If the Supreme Court has a teachable moment to undercut the elitist notion that the Constitution places no limits on the federal government’s power, shouldn’t the Chief Justice be bold and courageous enough to make that argument? He might have faced the ire of many law professors, but likely would have the support of a majority of American citizens. Why should the conservative bloc on the court receive opprobrium for their interpretation of the Constitution when the liberal bloc is always ready to vote yes for any expansive reading of the Constitution that supports liberal social policy and the increase of government power? I would argue that a decision to overturn the law would have equally and fairly offered Americans a valid electoral choice. If you want a President to appoint justices who view the Constitution as posing no limits on government power, by all means re-elect Obama. If you want justices who understand the Constitution as imposing constraints, vote for Romney. Further, a ruling of unconstitutionality would also have put the legislative policy decisions squarely in play, as there would certainly be a vastly different approach between Congressional Democrats and Republicans as to the appropriate “replacement legislation.”
Second, if the Chief Justice really believed the law was unconstitutional, it is especially unseemly for him to engage in such a Machiavellian maneuver. Won’t this increase cynicism and decrease respect for the Court more than the impact of a 5-4 opinion striking down the law? The Court as an institution would surely have survived such as outcome.
Politically, the opinion hands the President a huge political victory. He and his supporters can argue that conservatives were off base in challenging the law’s constitutionality and wasted a lot of time and money in doing so. It gives legitimacy to the notion that, despite Roberts’ opinion, there is really no limit on the reach of the federal government. That the government cannot mandate a person to purchase a product by imposing a civil or criminal penalty, but can tax that individual if he or she does not purchase the product, is a distinction that seems without merit and without posing any real limit on government power.
Why do conservative justices have to yield to pressure to find a “middle ground” and compromise when there is never similar pressure on the four liberal justices to break their monolithic approach? When Roberts presumably could not convince a single one of these four justices to switch sides, why do they deserve special consideration for the Chief Justice to bend over backwards to support their expansionist reading of the Constitution? I fear ultimately the decision is just the next step on America’s slide towards a European style social welfare state, which is surely Obama’s goal. He has every right to argue that case, but not to expect the Supreme Court to ignore Constitutional restraints which we had thought separated America from the worse excesses of European-style big government socialism.
Roberts in his confirmation hearings said he considered a judge to be the “umpire.’ As Rich Lowry of National Review points out, in this case apparently the umpire blinked. And we may all be paying the price for this blinking for many years to come.
Litch: Roberts’ Folly?
Tuesday, July 03, 2012
By: C. Scott Litch
Some argue that Chief Justice Roberts was a genius for putting health care reform back into the political area, recasting the individual mandate as only viable under the taxing power vs. the commerce clause, and keeping the academic and media elite from carping about the illegitimacy of the Supreme Court.
There is no question that the Court’s decision puts the issue of repeal and replace squarely back in the political arena. However, there are several flaws in the “Roberts is a genius” line of reasoning.
First, why should the Chief Justice worry about elite moaning and groaning if he believed the individual mandate was unconstitutional? The mandate as a tax argument lacks merit, as sharply noted in the minority opinion. If the Supreme Court has a teachable moment to undercut the elitist notion that the Constitution places no limits on the federal government’s power, shouldn’t the Chief Justice be bold and courageous enough to make that argument? He might have faced the ire of many law professors, but likely would have the support of a majority of American citizens. Why should the conservative bloc on the court receive opprobrium for their interpretation of the Constitution when the liberal bloc is always ready to vote yes for any expansive reading of the Constitution that supports liberal social policy and the increase of government power? I would argue that a decision to overturn the law would have equally and fairly offered Americans a valid electoral choice. If you want a President to appoint justices who view the Constitution as posing no limits on government power, by all means re-elect Obama. If you want justices who understand the Constitution as imposing constraints, vote for Romney. Further, a ruling of unconstitutionality would also have put the legislative policy decisions squarely in play, as there would certainly be a vastly different approach between Congressional Democrats and Republicans as to the appropriate “replacement legislation.”
Second, if the Chief Justice really believed the law was unconstitutional, it is especially unseemly for him to engage in such a Machiavellian maneuver. Won’t this increase cynicism and decrease respect for the Court more than the impact of a 5-4 opinion striking down the law? The Court as an institution would surely have survived such as outcome.
Politically, the opinion hands the President a huge political victory. He and his supporters can argue that conservatives were off base in challenging the law’s constitutionality and wasted a lot of time and money in doing so. It gives legitimacy to the notion that, despite Roberts’ opinion, there is really no limit on the reach of the federal government. That the government cannot mandate a person to purchase a product by imposing a civil or criminal penalty, but can tax that individual if he or she does not purchase the product, is a distinction that seems without merit and without posing any real limit on government power.
Why do conservative justices have to yield to pressure to find a “middle ground” and compromise when there is never similar pressure on the four liberal justices to break their monolithic approach? When Roberts presumably could not convince a single one of these four justices to switch sides, why do they deserve special consideration for the Chief Justice to bend over backwards to support their expansionist reading of the Constitution? I fear ultimately the decision is just the next step on America’s slide towards a European style social welfare state, which is surely Obama’s goal. He has every right to argue that case, but not to expect the Supreme Court to ignore Constitutional restraints which we had thought separated America from the worse excesses of European-style big government socialism.
Roberts in his confirmation hearings said he considered a judge to be the “umpire.’ As Rich Lowry of National Review points out, in this case apparently the umpire blinked. And we may all be paying the price for this blinking for many years to come.
By: C. Scott Litch
Some argue that Chief Justice Roberts was a genius for putting health care reform back into the political area, recasting the individual mandate as only viable under the taxing power vs. the commerce clause, and keeping the academic and media elite from carping about the illegitimacy of the Supreme Court.
There is no question that the Court’s decision puts the issue of repeal and replace squarely back in the political arena. However, there are several flaws in the “Roberts is a genius” line of reasoning.
First, why should the Chief Justice worry about elite moaning and groaning if he believed the individual mandate was unconstitutional? The mandate as a tax argument lacks merit, as sharply noted in the minority opinion. If the Supreme Court has a teachable moment to undercut the elitist notion that the Constitution places no limits on the federal government’s power, shouldn’t the Chief Justice be bold and courageous enough to make that argument? He might have faced the ire of many law professors, but likely would have the support of a majority of American citizens. Why should the conservative bloc on the court receive opprobrium for their interpretation of the Constitution when the liberal bloc is always ready to vote yes for any expansive reading of the Constitution that supports liberal social policy and the increase of government power? I would argue that a decision to overturn the law would have equally and fairly offered Americans a valid electoral choice. If you want a President to appoint justices who view the Constitution as posing no limits on government power, by all means re-elect Obama. If you want justices who understand the Constitution as imposing constraints, vote for Romney. Further, a ruling of unconstitutionality would also have put the legislative policy decisions squarely in play, as there would certainly be a vastly different approach between Congressional Democrats and Republicans as to the appropriate “replacement legislation.”
Second, if the Chief Justice really believed the law was unconstitutional, it is especially unseemly for him to engage in such a Machiavellian maneuver. Won’t this increase cynicism and decrease respect for the Court more than the impact of a 5-4 opinion striking down the law? The Court as an institution would surely have survived such as outcome.
Politically, the opinion hands the President a huge political victory. He and his supporters can argue that conservatives were off base in challenging the law’s constitutionality and wasted a lot of time and money in doing so. It gives legitimacy to the notion that, despite Roberts’ opinion, there is really no limit on the reach of the federal government. That the government cannot mandate a person to purchase a product by imposing a civil or criminal penalty, but can tax that individual if he or she does not purchase the product, is a distinction that seems without merit and without posing any real limit on government power.
Why do conservative justices have to yield to pressure to find a “middle ground” and compromise when there is never similar pressure on the four liberal justices to break their monolithic approach? When Roberts presumably could not convince a single one of these four justices to switch sides, why do they deserve special consideration for the Chief Justice to bend over backwards to support their expansionist reading of the Constitution? I fear ultimately the decision is just the next step on America’s slide towards a European style social welfare state, which is surely Obama’s goal. He has every right to argue that case, but not to expect the Supreme Court to ignore Constitutional restraints which we had thought separated America from the worse excesses of European-style big government socialism.
Roberts in his confirmation hearings said he considered a judge to be the “umpire.’ As Rich Lowry of National Review points out, in this case apparently the umpire blinked. And we may all be paying the price for this blinking for many years to come.
RJC Responds to Obamacare ruling by Supreme Court
Thursday, June 28, 2012
By: RJC Press Office
Washington, D.C. (June 28, 2012) -- The Republican Jewish Coalition (RJC) is deeply disappointed by the Supreme Court's decision on Obamacare, Florida v. United States Department of Health and Human Services.
RJC Executive Director Matt Brooks said, "The Supreme Court has rendered judgement on the constitutionality of Obamacare. It remains up to Congress and the American people to judge whether it is good policy. The serious negative effects this law will have on the economy, on jobs, on medical research and development, and on the quality of health care in America, are very troubling. The American people will have the opportunity to express their opinion on the wisdom of Obamacare in this election year."
By: RJC Press Office
Washington, D.C. (June 28, 2012) -- The Republican Jewish Coalition (RJC) is deeply disappointed by the Supreme Court's decision on Obamacare, Florida v. United States Department of Health and Human Services.
RJC Executive Director Matt Brooks said, "The Supreme Court has rendered judgement on the constitutionality of Obamacare. It remains up to Congress and the American people to judge whether it is good policy. The serious negative effects this law will have on the economy, on jobs, on medical research and development, and on the quality of health care in America, are very troubling. The American people will have the opportunity to express their opinion on the wisdom of Obamacare in this election year."
RJC Responds to Obamacare ruling by Supreme Court
Thursday, June 28, 2012
By: RJC Press Office
Washington, D.C. (June 28, 2012) -- The Republican Jewish Coalition (RJC) is deeply disappointed by the Supreme Court's decision on Obamacare, Florida v. United States Department of Health and Human Services.
RJC Executive Director Matt Brooks said, "The Supreme Court has rendered judgement on the constitutionality of Obamacare. It remains up to Congress and the American people to judge whether it is good policy. The serious negative effects this law will have on the economy, on jobs, on medical research and development, and on the quality of health care in America, are very troubling. The American people will have the opportunity to express their opinion on the wisdom of Obamacare in this election year."
By: RJC Press Office
Washington, D.C. (June 28, 2012) -- The Republican Jewish Coalition (RJC) is deeply disappointed by the Supreme Court's decision on Obamacare, Florida v. United States Department of Health and Human Services.
RJC Executive Director Matt Brooks said, "The Supreme Court has rendered judgement on the constitutionality of Obamacare. It remains up to Congress and the American people to judge whether it is good policy. The serious negative effects this law will have on the economy, on jobs, on medical research and development, and on the quality of health care in America, are very troubling. The American people will have the opportunity to express their opinion on the wisdom of Obamacare in this election year."