Monday, April 2, 2012

Presidential Rewrite

You know, I really had a couple of other things that I wanted to write about this week (and maybe I'll get to them as it progresses), but this one simply won't go by without comment ....

The president gave a speech in the Rose Garden of the White House today that could and should best be described as nothing more or less than a 'rewrite'. No other term can adequately describe something that in so many ways attempts to rewrite parts of the past.

To begin with, it appears that the President would like to rewrite the definition of 'Judicial Activism', which normally defined as a judge or court using their ruling to make new law based on personal bias or political considerations rather than interpreting that law.  In fact, the Supreme Court duly waited for the "Patients Affordable Health Care Act" to properly work its way through the judicial system.  During their extended three days of testimony, their questions seemed exactly on point with regards to issues of law, whether eliciting interpretation of the 'Commerce Clause' or considering points of this law relating to the taxation powers of Congress.  They did not ask how much it would cost or what good it might do.  So in fact, it could instead be said that the Justices used Judicial 'restraint' rather than activism.

Second, it certainly appears to be a rewrite of his own past for a former 'community organizer' to decry the process of "judicial activism" when describing whatever the result of the Supreme Court's decision is. Was it not these very community organizers (along with progressive political counterparts) that were crying out for such activism in the name of 'fairness' and 'justice'?  Haven't they for years sought such judicial activism in order to redress the inequities of this country (real or imagined) as they saw it.  Why then should they fear that which they demanded, unless of course they felt that they had failed to make their case to the Justices (much as they have to the American people)

Third, having redefined terms and his own early days of 'public service', the Editor in Chief was far from complete in rewriting history; this time where the law in question was concerned.  As quoted in the UK Guardian article, the President has said "it would be wrong for the "unelected" supreme court to take the "unprecedented and extraordinary" decision to strike down his signature health care legislation when it was passed by an elected Congress."  (Though he did get the part about the Supreme Court being 'unelected'.)  He was in fact quoted in the article as saying, "I am 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".  By what editing tool does the president call the passage of this law a "strong majority."    

Oh it's true enough that it passed by a majority of both Houses of Congress, and while (at least according to our friends at Wikipedia) the Senate passed the bill that became this law by a 60-39 majority.  In this decisive majority, note was taken however that vote was strictly along party lines and barely escaped a no-vote from filibuster.  Every Democrat and two Independents voted for it and every Republican against it.  It's in the House however, that this alternate rendition of history becomes farcical.  The vote there was 219-212, with all 178 Republicans and even 34 Democrats voting against it.  Certainly neither of these votes could be called by the magic word we've heard so often lately ... "bi-partisan"  (unless we note bi-partisan rejection of it in the House).  As for 'strong majority', a margin of 7 can only be called one if we not only rewrite history, but redefine the term itself. 

(And we won't even bring up that no one in either House of Congress actually read the entire 1990 pages of the bill before voting on it, or the procedural gymnastics that were involved with bringing it to a vote.  Oops, I just did ... sorry.)

Perhaps most interesting in all of this however, is the attempted rewrite of the Constitution that the President would like to make, which as ratified says in part:

Article III, Section 1 - "The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Article III, Section 2 - The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made ..."  

Evidently now according to this President however, who's a former Constitutional Law professor by the way, it's no longer the responsibility of the Supreme Court to pass on whether laws passed by Congress fall within the limitations placed on government by that document; even when they're legitimately challenged.  It's also apparently now acceptable for a majority to rule without respects to the rights of either the minority or the Constitution in the passage of laws.  Further, it appears that it's no longer acceptable for that minority to challenge what our Constitution was designed to avoid, a tyranny of the majority which many think this particular piece of history reeks of.  Constitutionally, the Supreme Court is not obligated (nor should it in any way) consider how a law passed by Congress; even it's done so by unanimous acclimation.  It's only liable to consider whether such a law fits within the limits defined by the Constitution for the federal government and which created their positions to do so.

You will note here that I have not spoken about whether I think that the law should or will be overturned by those in the Court, since the decision has no place in this discussion; only that it's the Supreme Court's obligation to make the very considerations that they are currently taking on, and that the President should allow them to do so without political interference.  It is likewise the duty of a President who swore to uphold and defend the Constitution to recognize (as any true Constitutional scholar would) that the 'Separation of Powers' is a defining principle in that document, and not one to be cast aside lightly, even in the name of retaining an office through blatant pandering and electioneering.

Oh I know that it's an election year, and as such Presidential podium pontificating is to be expected as an incumbent President seeks not only to defend his Administration's signature piece of legislation, but to unofficially poll for issues that can be used in the coming days for stump speeches.  I know that his opponents will likely attempt to use the Court's decision (not due for release until July) in the campaign as well.  This is the second time in three years however, that this President has publicly castigated or taunted the Justices of the Supreme Court in their attempts to fulfill their Constitutional obligation however.  He has likewise recently remarked in public statements that if Congress would not do that which was necessary, he would do it without them.  

With all due respect to the President, he might well wish to consider that if he wants to have his own authority respected that he needs to likewise respect the power and authority of those co-equal branches of government. He might also want to recognize that in his current Constitutionally limited position, he is not granted the power of Presidential Rewrite.

No comments: