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Obama, courts at war



Supreme Court, battleground of the Constitution, rules for Hobby Lobby. But is Neil Gorsuch a good candidate to sit here?

Barack H. Obama is at war with the nation’s courts. He fired the first salvo on Monday, and an appellate court answered him. He has probably done the most foolish thing in his career: getting the courts angry with him as challenges to his eligibility to the office of President mount.

Obama fires the first shot

On Monday afternoon, Obama held a joint news conference with Prime Minister Stephen Harper of Canada, and President Felipe Calderon of Mexico. The two other men expected to talk about trade among their three respective countries. But someone asked Obama whether he had anything to fall back on, should the Supreme Court rule that his health care reform bill was unconstitutional. Herewith his verbatim reply:

I think the justices should understand, in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually have health care. So there is not only an economic issue; there is a human issue. Ultimately, 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 Supreme Court. Can Obama afford to go to war with it?

The United States Supreme Court, with several March for Life participants in the foreground. Photo: CNAV files

Breitbart quickly reminded readers of the last time that Obama threatened the Supreme Court. In Citizens United v. Federal Elections Commission, the Court held, per curiam (i.e., unanimously), that joint-stock corporations have as much right to advertise on political issues as have the trade unions. A furious Obama took them to task in the middle of his State of the Union Address. Obama said that the Court had thrown out centuries of precedent and now would let “special interests” and even overseas companies “interfere” in American politics. That prompted Justice Samuel J. Alito to mouth back silently, “That’s not true.”

On Monday Morning, Representative Jim Clyburn (D-SC) had already advised Obama to run against the Supreme Court. According to Breitbart, Obama seemed to be taking Clyburn’s advice.

The Fifth Circuit Court answers Obama

That was bad advice. Clyburn was wrong to give it, and Obama was just as wrong, or more wrong, to take it. Yesterday the Court of Appeals for the Fifth Circuit answered Obama’s challenge. During oral argumentJerry in Physicians Hospitals of America et al. v. Kathleen Sebelius et al., Judge Jerry Smith frostily asked Dana Lee Kaersvang, the attorney for the government, to explain whether the government acknowledged that courts may strike down laws that those courts deem unconstitutional. Kaersvang readily acknowledged the obvious case, Marbury v. Madison. But she insisted that the health care reform bill was still constitutional.

So Smith assigned her what looked like the kind of homework that teachers assign to punish impudent schoolchildren:


I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president.

See these reports from CBS-TV and

Later yesterday, Obama sheepishly said:

The point I was making is that the Supreme Court is the final say on our Constitution, and all of us have to respect it,” he said. “But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to a duly elected legislature.”


Clearly, Obama is at war with the courts. The Wall Street Journal seemed to expect no better of Obama. Jim Taranto said today that Obama is playing to his base. He further said that Obama must play to his base in this way, so that they will not blame him when the Supreme Court rules against him.

The Daily Beast carried the war further. They accused the Court of wanting to “send us back to the Gilded Age.” They actually said that Congress should impeach any Justices who vote against the health care reform bill, if the Court rules against it.

That would be extraordinary and almost unprecedented. (No Justice of the Supreme Court has stood trial in the United States Senate since Salmon P. Chase in 1805. The Senate acquitted him.) The Beast offered this rationale:


A decision striking down the health care law would be a statement that the only people entitled to health care are the people who can afford it.

And since when does the Constitution use words like entitle? Where does the Constitution speak of a “right of citizens of the United States to health care” that “shall not be denied or abridged by the United States or by any State by reason of lack of ability to pay”? For that matter, where does the Constitution grant Congress the power “to [set up] free hospitals and free clinics”?

Obama might indeed by playing to his base, as Jim Taranto said. But now he has more than the Supreme Court to worry about, and more than the health care reform bill for that matter. What view will the courts take when the families of US border-patrol agents who died in the line of duty, file wrongful-death lawsuits and cite evidence from Operation Fast and Furious? And does Obama really want to antagonize the federal courts when more Obama eligibility challenges spring up in various State courts and legislatures?

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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