“Presidents should generally refrain from commenting on pending cases during the process of judicial deliberation,” said Harvard Law professor Laurence Tribe, a close Obama ally. “Even if such comments won’t affect the justices a bit, they can contribute to an atmosphere of public cynicism that I know this president laments.”
White House officials sought Wednesday to play down Obama’s comments, with press secretary Jay Carney calling them an “unremarkable observation about 80 years of Supreme Court history.”
Carney said Obama was “referring to the fact that it would be unprecedented in the modern era of the Supreme Court, since the New Deal era, for the Supreme Court to overturn legislation” on a “matter of national economic importance” — not that it would be unprecedented for the court to rule that a law was unconstitutional. “That’s what the Supreme Court is there to do,” Carney said.
But the White House was forced to defend the assertion that overturning the health-care law would be unprecedented. According to the Congressional Research Service, the court through 2010 had ruled 165 times that laws passed by Congress were unconstitutional.
Obama himself agreed with some of those decisions, including 2008’s Boumediene v. Bush, in which the court ruled 5-4 that the Military Commissions Act’s suspension of the right of habeas corpus for Guantanamo Bay detainees was unconstitutional.
And Wednesday, the administration was in court in Boston explaining why it thinks the Defense of Marriage Act is unconstitutional, although it was passed by bipartisan majorities and signed by a Democratic president.Lloyd Green writes:
The blow-up between Obama and the courts is laden with irony. From Team Obama the message seems to be that Roe v. Wade is engraved in tablets, but Marbury v Madison and judicial review are just so much paper.The Huffington Post has an update:
Continuing the politically charged back-and-forth between the executive and judicial branches over President Barack Obama's health care reform law, Attorney General Eric Holder on Thursday submitted a letter to a federal appeals court affirming that the "power of the courts to review the constitutionality of legislation is beyond dispute," but reiterated the president's statement that courts should show strong deference to Congress' commerce-based regulations.