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Is Obama trying to sway SCOTUS?

Is Obama trying to sway SCOTUS?

The answer? Yes.

Atlantic writer Russell Berman wonders:

…[Obama’s] decision to champion his signature achievement in such pointed terms just weeks before the high court’s ruling is due raised the question of whether Obama was trying to jawbone the justices at the 11th hour.

…“It seems so cynical,” he said, “to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”…

The speech came a day after the president, in response to a reporter’s question, commented directly on the case before the justices…”Under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case,” Obama said. “This should be an easy case. Frankly, it probably shouldn’t even have been taken up,” he added…

[In 2012, Obama had] sharply warned the Court not to rule against his healthcare law the first time around. “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,” Obama said then.

If Obama’s words are any guide, it seems fairly clear that he’s trying to influence the Supreme Court justices, despite Harvard law professor Charles Fried’s statement to the contrary, “I can’t imagine it’ll make any difference, and I can’t imagine he thinks it’ll make any difference.” Fried has a particularly impoverished imagination if he can’t imagine the latter, because Obama has made it clear from the very first days of his presidency that he thinks his powers of persuasion (coupled, although unmentioned by him, with powers of arm-twisting and/or possible threats) are extraordinary.

What’s more, it’s fairly clear from the way the opinions were written in Sebelius that something had persuaded Justice Roberts to change his mind at the last minute, whether it was mere persuasion, or pressure of some sort.

But persuading the justices (or one justice) is only one motive for Obama’s words. Another motive would be to undermine the public’s regard and respect for the Supreme Court—particularly when that Court happens to disagree with Obama, or when it takes away an entitlement of any sort that has been “woven into the fabric of America.” Obama’s not talking about the law there, or an interpretation of the law, he’s saying that nothing once given can be taken away, and that the liberal/left agenda for America should be unstoppable no matter what the law says.

There’s more, too. When Obama speaks about SCOTUS he’s donning the mantle of his “constitutional scholar” background, harking back to when he taught Constitutional Law at the University of Chicago long ago. He has discussed that part of his résumé often enough that he probably assumes the listener will remember that he’s not just speaking as president but as someone who is supposed to be an expert on the matter.

Of course, that doesn’t stop him from misstating the law, because in fact the “well-established precedent” about the interpretation of the wording of statutes (which is what King v. Burwell involves) tends to fall on the side of invalidating the federal subsidies, although there’s plenty of room for argument (there always is, with lawyers). But pretending that the legal precedent is obviously in favor of the Obama position is just that, pretense.

[NOTE: See this, this, and this, for examples of the legal arguments against Obama’s position.]

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]

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Comments

healthguyfsu | June 11, 2015 at 8:49 am

His arrogance knows no bounds, and it could really bite him here. The court has already shown their distaste for his strong arm tactics with respect to their purview in the past.

    sequester in reply to healthguyfsu. | June 11, 2015 at 9:05 am

    It has not bitten him so far.

    Roberts backed down in Halbig v Sebelius. Zivotosky vs Kerry just expanded Presidential power. They did hand Obama a defeat in NLRB v Noel Canning over recess appointments.

    In all this is a very cautious Court that appears easily swayed by progressive bullying.

      Clinger in reply to sequester. | June 11, 2015 at 9:44 am

      Not sure if caution is the right word here.

      I would not put it past Obama to threaten Roberts to get his way. Just look at Obama’s past behavior in Illinois.

      “Gee, it’d be a shame if something bad were to happen to your wife and kids”…

        MattMusson in reply to Clinger. | June 11, 2015 at 10:57 am

        Of course we are all assuming that Obama is not using all those NSA survellience records to get blackmail goodies against the Justices and their families. It is probably naive to make that assumption.

    Radegunda in reply to healthguyfsu. | June 11, 2015 at 12:35 pm

    Remember that we’re only seeing the kind of “persuasion” that Obama is applying out in the open. It would be folly to assume it’s the only kind he’s applying.

FDR threatened to pack the court with political supporters.

What is it with these leftests? They cannot stand to be challenged. They feel it necessary to impune and destroy anyone who does.

DINORightMarie | June 11, 2015 at 9:09 am

Of course he is.

He saw that it worked before…….and he would never let anything stop him from pushing his agenda. Never.

What’s to lose, from his perspective?

Robert’s voted the way he did the first time simply because he wanted favorable press. And he got it from the left. He showed he is not a judge, but a a politician preening before the cameras. What he did was shameful, and what he may do could be just as shameful.

Sammy Finkelman | June 11, 2015 at 9:56 am

Obama may be trying to sway the court, but the problem is that he’s doing it by trying to sway public opinion against the court should it rule in the way he doesn’t like.

I don’t think it will have much effect.

Obama is claiming it is no-brainer, which is not true, and the court won’t be swayed by that. The court knows ruling against him will create a mess, and they don’t like creating messes, even if the law really should be read that way. The court and the public – also knows that Congress can fix it, and President Obama acknowledged that, so they won’t wprry too much about creating amess – besides they have to incentivize Congress to pass laws that say what they mean and mean what they say.

The importance of this would be even stronger if the court realized that the law was written the way it was for cynical political reasons – to game the CBO score – and the people who created the problem, and knew what the problem was (mainly Senator Harry Reid and few close allies) probably intended to quietly fix it in the next Congress, but couldn’t do so because the Democrats lost control of the House of Represenatives.

…“It seems so cynical,” We the People said, “to want to take an unread bill and shove it down the throats of millions of people; to take no thought about people who will have to live with the unintended consequences; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”…

Doesn’t matter which way the decision comes out. The country is screwed.

“But persuading the justices (or one justice) is only one motive for Obama’s words. Another motive would be to undermine the public’s regard and respect for the Supreme Court—particularly when that Court happens to disagree with Obama”

In order words, Obama is acting like a Republican Senator/Representative running for President. Ted Cruz and Lindsey “Butters” Graham are certainly attempting to “undermine” the public perception of the current President.

If there is one thing all politicians have, it’s an opinion on what the Supreme Court should do. Stating that opinion is about as threatening as farting at the nine life-tenured Justices…

    Ragspierre in reply to anoNY. | June 11, 2015 at 11:31 am

    assoNY, you really are too stupid to comment here.

    You CAN, of course, but you just show your ass. O’NY.

    Radegunda in reply to anoNY. | June 11, 2015 at 1:03 pm

    The obvious point you fail to see is that political candidates try to sway public perceptions of other politicians because the public is empowered to vote for the politicians (or the policy direction) they prefer — whereas the public is not empowered to vote in court cases, and the judgments of the Court are supposed to be made according to the Constitution regardless of what public opinion may hold.

    Obama is clearly trying to destroy the concept of a Court that adheres to the Constitution rather than the political pressures of the moment. He is just as clearly aiming to destroy the principle of the judiciary as coequal with the executive. He is trying to command the judiciary to obey him.

    When has a Republican president so openly tried to pressure the Supreme Court to do what he wants? When has a Republican president said it was “important to expect” that the Court would rule as he wanted? When has a Republican president publicly said that it would be “cynical” and immoral for the Court to rule against his agenda?

      Radegunda in reply to Radegunda. | June 11, 2015 at 1:07 pm

      “Obama is clearly trying to destroy the concept of a Court that adheres to the Constitution rather than the political pressures of the moment” — and he is doing so with extreme cynicism by pretending that the public is happy and overwhelmingly better off with Obamacare, when it clearly is not.

    4fun in reply to anoNY. | June 11, 2015 at 6:15 pm

    Ted Cruz and Lindsey “Butters” Graham are certainly attempting to “undermine” the public perception of the current President.

    I think the voters undermined obama in the last election. Pretty loudly as a matter of fact.
    Worst midterm defeat ever wasn’t it? Did the dems even win a dog catcher seat that was in contention?

“It seems so cynical,” he said, “to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care …” — all of which, of course, were results of Obamacare.

And isn’t it remarkable to see lectures on cynicism from someone who always ascribes the ugliest motives to people who disagree with his policies; someone who brazenly lies about his intentions; someone who delays his unpopular actions until just after elections; someone who baldly lies about what his policies have actually done; someone who zealously imports new voters so as to impose on the rest of us an agenda we don’t want and to “fundamentally transform” our whole culture; etc. …

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