It’s Good Friday. And do you know where your federal branches of government are? The executive and judicial branch are steeped in battle at the moment.
Maybe certain people got an early taste of full moon in the week. Monday, during a joint press conference with the leaders of Mexico and Canada, President Obama tried Jedi-mind tricking messages to the Supreme Court justices currently deciding the fate of his Affordable Healthcare Act. Twenty-six states challenged the law which gives 30,000 more people Medicare coverage, and in particular the provision requiring all Americans to purchase healthcare or face a penalty.
“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,” the President said in response to a reporter’s question about how he feels the Court will rule.
Using language often embraced by conservatives and those on the right, he said he questioned how “an unelectable group of people” could overturn legislation created by Congress. He also warned the justices against “judicial activism” which is described as using personal ideology, biases and experiences to fashion a decision and interpret the conflict in a way that aligns with a conclusion personally preferred by the judge.
Part of the problem is that the justices already voted on the case. So, whatever he’s saying now will influence how they write the final opinion expected to come out sometime in late June.
In response, the 5th Circuit Court of Appeals sent a highly unusual 3-page letter to the Department of Justice asking Attorney General Eric Holder to clarify that the White House recognizes the courts’ authority to declare laws passed by Congress unconstitutional. Holder replied yesterday saying that the president’s remarks were consistent with the Justice department which believes courts owe Congress a certain deference when interpreting laws.
“The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” the letter states. “The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends.”
By Good Friday-eve, some were saying the 5th Circuit court overstepped its bounds by demanding a reply from the White House. It’s on like Donkey Kong in politics these days.
The president may have been parroting the concern of the left that the majority conservative justices will toss the Affordable Care law based on their personal ideology, and the questions they asked last week during oral arguments. Currently, five justices traditionally rule more conservative while four rule liberally.
Some have characterized the president’s language Monday towards the court as threatening, almost as finger wagging.
White House reporters have gotten into the fight.
Wednesday, during the daily press briefing with White House spokesperson Jay Carney, several reporters pressed Carney to admit that while Obamacare passed with a majority vote, it was not an overwhelming majority and courts have overuled Congress in the past. The law passed the House with a slim vote of 219 to 212.
One reporter pressed Carney to admit that the president may have made a mistake using the word “unprecedented” given the fact that in the past, albeit the distant past, the Supreme Court has indeed overturned laws mandated by Congress in the past.
Carney clarified that while the court have overruled Congress in the past, in recent history, it has not.
Howard E. Katz, a constitutional law professor at Elon University School of Law in North Carolina told Politic365 that the Supreme Court has indeed overturned Congressional laws in the past.
Carney insisted there was wiggle room to use the word “majority.”
Although the justices do not usually and are expected to not be biased, they are free to interpret the law how they wish, but they do in fact get some briefing and guidance from the outside through legal journals.
It is a little known secret among legal scholars that one way to communicate to justices is for legal scholars and attorneys to publish guidelines to the court in law journals. The justices’ clerks often rely on academic journals to help guide the memos they craft to their justices. These clerks routinely rely on journals published by top law schools such as Harvard, Yale, University of Chicago.
It’s not that far a stretch.
As a former editor-in chief of the Harvard Law Review, the president might know about this. Or maybe it was his YOLO, an only-live-once all out before the Supreme Court drops one of the most consequential legal decisions in U.S. history.
“It is unusual but not unprecedented for a president to comment on a pending case,” Katz added. “Of course he must know the justices might hear of his comments – perhaps directly, since of course some of them read the papers, or perhaps indirectly.”
Katz added that although in theory their judgment should not be affected, “they probably already figured that he would not like it if they overturn the Act, whether he made the statement he made or not. ”
But that hasn’t stopped several in the blogsphere and the new media to preemptively demand the Justices heads on a platter should they rule in a manner they don’t like. There have been numerous calls for impeachment by every Monday water-cooler quarterback in the country.
And because the court already held votes on preliminary items during a secret vote last week, some are guessing that perhaps Obama appointee and former Solicitor General Elena Kagan leaked the outcome of that vote to the president already, hence his strongly worded Monday presser.
It may all be much ado about nothing, Katz added. Or is it?
“Even though it is always something of a big deal when the Supreme court overturns a federal law, and more so if it is one whose passage was front – page news, if the Court were thinking in purely political terms the justices certainly could feel they have more room to maneuver and less risk of backlash since the law is not hugely popular with the public,” he said. “On the other hand, again in purely political terms, members of the Court could figure that a law like this without continuing broad support might well be reversed in the political arena, and thus the justices could feel LESS compelled to overturn it. And all of that assumes they are looking at the politics, which of course is not what we hope and expect the Supreme Court to do.”