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Should Prof. Obama Flunk His Own Course?

The opinions expressed by columnists are their own and do not necessarily represent the views of

We are often reminded that President Obama is the smartest man ever to occupy the White House. That’s how Prof. Michael Beschloss, presidential historian, described him. Of course, Mr. Obama was editor of Harvard Law Review. Most of all, we are informed regularly that Barack Obama taught constitutional law at University of Chicago. That’s no mean accomplishment.

So, it’s really curious how Professor Obama defines constitutional issues.

Last week, he told a Rose Garden audience that the U.S. Supreme Court would be engaging in “judicial activism” if it rules his health care takeover unconstitutional.

That’s because, the Patient Protection and Affordable Care Act was passed by what Mr. Obama calls a “strong majority” of elected Members of Congress.

Actually, there were a critical few members of that U.S. Senate who were not elected. Sen. Roland Burris of Illinois (D) was then temporarily occupying the seat Sen. Obama had vacated. Burris was put in that seat by Illinois’ Gov. Rod Blagojevich (D) who is now on his way to prison for corruption related to that appointment. Sen. Ted Kaufman of Delaware (D) was appointed, not elected, to fill Joe Biden’s seat, as he stepped into the vice presidential chair. Sen. Kirsten Gillibrand of New York (D) was appointed, not elected, to fill the seat of Sec. of State Hillary Clinton. Gillibrand was appointed by New York’s Gov. David Patterson (D). Then, there was Colorado’s Sen. Michael Bennet (D), who was appointed to serve the unexpired term of Interior Secretary Ken Salazar (D).

I have not yet consulted the Senate historian, but since this landmark legislation was passed by the narrowest of partisan majorities—with not a single Republican voting for it—and since at least four of the must-have votes came from appointed U.S. Senators—it sure seems odd to characterize the legislation has having been passed by a “strong majority” of elected representatives of the people.

In the House of Representatives, then-Speaker Nancy Pelosi promised to go down the chimney, up through the sewers, and around the bend, if necessary, to jam the health care bill through. But jam it she did. That is why the then-Speaker is not the now-Speaker. Even so, the vote in the House was squeakingly close: 219-212.

Some “strong majority.”

Now, suppose Prof. Obama, you could pass a bill through a Democratic-controlled House by a vote of 342-67, with 219 Republicans and 120 Democrats backing it? Suppose, further, that you got your legislation through the Democratic Senate on a vote of 85-14, with all Republicans backing it and only 14 Democrats opposed? Suppose, further, that that bill had been signed in 1996 by a Democratic president.

I’d call that Act one that was passed with “a strong majority of elected representatives of the people.” After all, that legislation passed both houses of Congress with veto-proof majorities.

But Professor Obama does not even call the Defense of Marriage Act constitutional. Despite its overwhelming passage, Obama calls this act unconstitutional. And he sent his Justice Department into federal court to get it overturned. Meanwhile, without succeeding in that bid, he refuses to defend or enforce a law of Congress.

By his own standards, Prof. Obama’s health care takeover, received a down-to-the-wire passage on the narrowest of partisan bases. It relied on the votes of unelected senators (not to mention highly dubious Cornhusker Kickbacks and a second Louisiana Purchase). By any measure, it was a questionable measure.

If only Barack Obama were to apply his own brave Rose Garden words to the Defense of Marriage Act. If only he would treat this vital legislation the same way he treats his healthcare takeover. He would then be in front of the Supreme Court dramatically defending DOMA himself.

That lopsided Senate vote (85-14) on the Defense of Marriage Act in 1996 contains many ironies. Not the least of these is the fact that the late Sen. Daniel Patrick Moynihan (D) was one of those misguided few who voted no.

Moynihan’s “no” vote on true marriage was especially tragic given his special sensitivity to the importance of marriage in the black community. Thirty years earlier, young Pat Moynihan had raised an alarm about the breakdown of marriage in his seminal Report on the Negro Family. The out-of-wedlock birthrate for black children in 1965 was then just 22%. Young Pat Moynihan saw this as dangerous. Today, the out-of-wedlock birthrate for the whole nation is 42%.

Young Pat Moynihan was right. Today’s Barack Obama is wrong. If we care about poverty, income mobility, health, education, and welfare, we need to support true marriage. Barack Obama is the most anti-marriage president in our history. Combined with Pat Moynihan’s falling away, that is a double tragedy.

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