Donald Lambro

WASHINGTON -- President Obama's complaints about the Supreme Court's critical review of his health care law suggests that he has a real problem with the Constitution's separation of powers doctrine.

He also seems to have a problem understanding that the court is a "co-equal" branch of government. Its powers are set forth in the Constitution. This is not some obscure government body that can be lectured about its duties and insulted as nothing more than -- in Obama's words -- "an unelected group of people."

Just a few days after the highest court in the land heard three days of oral arguments on a lawsuit brought by 26 states against the health care mandate, Obama seemed to be issuing a not-so-veiled warning to the justices, some of whom appeared to suggest that they may be prepared to strike it down.

Obama, in very blunt language, was essentially lodging a pre-emptive attack on the justices -- rare for a president in a pending case -- flatly telling them that striking down his mandate would be an unacceptable act of "judicial activism."

"I'd just remind conservative commentators that for years what we've heard is that 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," he said in a Rose Garden news conference Monday.

"Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step," Obama added.

And if the judges didn't get his message, he added that it would be an "unprecedented, extraordinary step" for the court to strike down the mandate in a law passed by "a strong majority of a democratically elected Congress."

Excuse me, Mr. President, but the vote by which a law was passed is irrelevant to whether it is unconstitutional or not. As it happens, the law was passed by the slimmest of margins along party lines.

This is a president who taught constitutional law at the University of Chicago, who graduated from Harvard Law School, who was president of the Harvard Law Review.

Did he miss the class that dealt with the separation of powers doctrine? Did he forget the lecture in Constitutional Law 101 about the Supreme Court's inherent authority as a co-equal branch of government?

There is nothing in the Constitution that suggests the court is an inferior branch of government because the justices are "unelected" and the president and members of Congress are elected by the people.

Indeed, in Article III of the Constitution, it clearly states "The judicial power of the United States, shall be vested in one supreme court ..."

And there are no restrictions on the court's purview. Indeed, it says, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States."

And what's this business about "unprecedented" if the court should strike down Obamacare? That's what the court has done in countless cases throughout our history, striking down laws that violate the Constitution -- from Marbury v. Madison in 1803 to anti-free speech laws in campaign finance reform.

Maybe Obama skipped his law class on the day it took up the Supreme Court's decisions in 1936 when it struck down 16 pieces of New Deal legislation. At least President Roosevelt had the decency to wait until he had won re-election before attacking the court on that one.

Obviously, the president knows full well that the court under Chief Justice John Roberts has overturned a lot of laws in some major cases.

There was the historic ruling striking down the handgun ban in the District of Columbia in which the court said the Constitution's "right to keep and bear arms" means exactly what it says.

There was the deconstruction of much of the McCain-Feingold campaign finance reforms that imposed severely unconstitutional restrictions on political freedom of speech.

And there was the decision in the Citizens United case that corporations were just like people and should be free to contribute money to the candidates of their choice.

That ruling really stirred the president's ire in his 2010 State of the Union address. In an unprecedented public display of presidential petulance, with the embarrassed robed justices sitting before him, Obama charged the court had "reversed a century of law" that would "open the floodgates for special interests" to influence the outcome of political campaigns. Justice Samuel Alito could be seen mouthing the words, "Not true."

Obama's feigned outrage didn't last long. His campaign set up a super-PAC to accept business contributions from Wall Street and the like that his fundraising handlers hope will push his total contributions to the $1 billion mark.

Still, Obama's outburst, months before the court will hand down its health care ruling, was a rarity in presidential posturing.

"Though past presidents have occasionally inveighed against judicial activism, legal analysts and historians said it was difficult to find a historical parallel to match Obama's willingness to directly confront the court," The Washington Post reported Tuesday.

This was a performance dripping in politics, and Obama was preaching to the choir to energize his party's base at a time when polls show voters aren't very enthused about their choices in this election.

The nearly $2 trillion health care law is widely unpopular, especially the mandate that forces uninsured Americans to buy health insurance they do not want or cannot afford.

Obama says he expects the court will uphold the law, and the White House says there is no "Plan B." They had better get one soon, because this mandate is going down.


Donald Lambro

Donald Lambro is chief political correspondent for The Washington Times.