A Supreme Overreach

Obama caught himself overreaching in warning the Supreme Court on his healthcare overhaul.  By preemptively declaring the law “constitutional,” which is precisely what the Court will spend the next three months deciding, he has raised the specter that any other verdict would be the reverse.  In so doing, he has created a public relations problem that will translate into a political one, if he is not extremely careful.   

 

On April 2, Obama sought to compensate for what many have called a lackluster Administration defense before the Supreme Court of the President’s healthcare overhaul.  He overcompensated.  His assertion that he is “confident that the Supreme Court will uphold the law” was benign enough – what else was he to say?  Anything less would be to throw in the towel right there.  The problem is that he didn’t stop there. 

 

His further assertion “it’s constitutional” took him down a slippery slope on which he continued to slip.  “That’s not just my opinion, by the way, that’s the opinion of legal experts across the ideological spectrum…”  Still he continued: should the Court do otherwise it would mean “an unelected group of people would somehow overturn a duly constituted and passed law” and that such a step “would be an unprecedented, extraordinary step…”

Obviously, the Supreme Court has some “legal experts” of their own and ruling on “passed laws” are precisely what they are paid to do – including overturning them, which the Court in its long history has had no compunction against doing. 

 

Obama caught his own overreach and sought to backtrack a day later: “The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it – but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.” 

 

The President apparently wishes he had “exercised significant restraint and deference” himself.  The reason is that he has created for himself a serious twofold problem.

 

His problem is first governmental.  Writing in the Federalist Paper #47, Madison underscored that one of the Constitutions founding tenets is “the political maxim that the legislative, executive, and judiciary departments ought to be separate and distinct… No political truth is certainly of greater intrinsic value…The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…may justly be pronounced the very definition of tyranny.”

 

What Madison is inherently saying is that Obama is objecting to what the Constitution was precisely meant to do.  It was meant to have the branches check each other and they were because the framers correctly deemed this to be fundamental to proper government.  As head of the branch entrusted to execute government’s actions, that’s a dangerous disconnect indeed.

 

Americans inherently feel this and they have felt it before.  The most prominent example being FDR’s attempt to “pack the Court” in the beginning of his second term.  While at his political apogee, he still found much of his political agenda grounded.  In a March 9, 1937, “fireside chat,” Roosevelt attacked the Supreme Court for “reading into the Constitution words and implications which are not there, and were never intended to be there.”  His solution was legislation to allow additional justices to be appointed – the effect of which would be to create a majority favorable to his policies.

 

FDR’s overreach was much more aggressive and the negative public reaction broader, but it was not distinctly different than what Obama has encountered.  And gauging the Administration’s reaction, they know it.  A swipe at the Supreme Court is seen as a swipe at the Constitution itself.  Nothing alienates Americans more. 

 

It also alienates voters.  FDR’s overreach did not cost him reelection.  Of course, FDR could more afford a negative reaction – he had won in 1936 with 62% of the vote and didn’t make his attempt his Court makeover in an election year.  Obama won in 2008 with 53% and his challenge to the Court comes during a grueling reelection.  The consequences of voter alienation could be far more tangible than the alienation itself. 

 

And it could be even more consequential for Obama.  While liberals (who ironically have benefitted more from the Supreme Court “activism” Obama decried than any group over the last few decades) may be cheered by Obama’s free legal advice, the rest of the political spectrum is not likely to be. 

 

That’s a big potential political problem because liberals made up just 22% of the electorate in 2008.  That compares to 44% for moderates and 34% for conservatives.  If Obama’s key to reelection is to retain his appeal to the center from four years ago, attacking the Supreme Court is decidedly not the way to do it.  No wonder the Administration wants this overreach forgotten as quickly as possible.