On Monday, I mentioned that someone should educate our President on judicial review. Interestingly, a Federal Judge noticed the same remarks and came to the same conclusion I did:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
Great minds think alike. Either that or a Federal Judge is reading my blog.
So, it looks like the President just got assigned a book report on Marbury vs. Madison. You think that he would come out and say "I certainly believe in judicial review, and I hope that the Justices agree with the Solicitor's arguments and uphold the ACA. Next question." That's all he needs to say. It's not hard. But noooooo....he has to double down on stupid. Here's our President's response when asked about judicial review:
Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.
He couldn't just leave it alone. His ego is way too big for that. He's got to prove that he's the smartest guy in the room. So, he finds a widely disliked case (like Lochner, Plesssy, ect.) and basically says that if you decide against the ACA, it's going to be just like Lochner. The Horror!
The problem is, the opinion in Lochner held that the Due Process Clause of the Fourteenth Amendment protects a robust right to "liberty of contract". It was subsequently overruled. Notice anything about the commerce clause? Neither did I. That's because Lochner isn't a commerce clause case. It isn't applicable to the current discussion.
So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding. I betcha they can't. Even if they're the President.
Someone needs to tell the President about the first rule of holes.