Barack Obama took to the airwaves Monday speaking about the Supreme Court and ObamaCare as if he had never studied American history or constitutional law.
Fox News's Greta Van Susteren took on the President later in the day saying, "He went to Harvard law school. Every person in law school hears Marbury versus Madison that says the function of the Supreme Court, its power includes the right to review whether a statute is constitutional or not" (video follows with transcript and commentary):
GRETA VAN SUSTEREN, HOST: OK, what's up with President Obama? He took a weird shot at the Supreme Court, the president today warning the Justices not to strike down his health care law.
(BEGIN VIDEO CLIP)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I just remind conservative commentators that for years, what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step.
(END VIDEO CLIP)
VAN SUSTEREN: An unelected group of people? Really? The president failed to mention the unelected people we should really be worried about, and that's the HHS workers who are implementing the health care law. We don't even know their names! And they're writing the rules.
Senator Jon Kyl is on the Senate Judiciary Committee. He joins us. Good evening, Senator. And your thoughts about the president apparently doesn't like the fact that this, quote, "unelected group," being the nine Justices, will be making a determination on constitutionality or not.
SEN. JON KYL (R), ARIZONA: Yes. Your first word was "weird," and it is kind of weird and incoherent. I mean, the liberals have no problem at all with this unelected group ruling in cases in their favor. And they were all for the Court deciding this case when they thought it was going to rule in their favor. But strangely after the oral arguments, when a lot of observers felt that the liberal case wasn't made very well by the government lawyers, they seemed to be in a panic mode. And a lot of folks both political and media now appear to be as the "Wall Street Journal" said mau-mauing the Supreme Court even before it's ruled, intimidating the justices, in effect accusing them before they have ruled of judicial activism.
It is a rather strange thing for the president to do. and I think he did this in the presence of two foreign leaders to be criticizing the court. I would call the State of the Union speech when he called out the court. He seems to have a habit of this. This is not a good thing for president to denigrate the third branch of government.
KYL: That is right. What was the holding in Marbury versus Madison, the first great case from the Supreme Court. In fact you could contend that the Supreme Court would be judicially active if it supported this stretching of the commerce clause as the Congress did in the Obamacare legislation. And the court in effect was asking the litigants how far can this be stretched? Is there no limit? I think the court would be imposing some judicial restraint on the Congress, on the federal government, if it drew a line here.
Remember, the court has never been presented with the case where Congress forced citizens to buy a product so it could then be regulated. And so the court didn't ask for this case, but it came to the court and it what to make a decision, one way or another. It's not judicially active if it says on the Congress, whoa, you gone too far.
VAN SUSTEREN: But the other thing president says in part, the extraordinary step of overturning a law that was that was passed by strong majority of democratically-elected Congress. Number one, it was not a strong majority. In fact, it was really close. Number two, it was a democratically elected Congress, but the democratically elected Congress didn't read the statute and it was farmed out to HHS, the people who are writing the rules and regulations. They aren't elected at all. And so the president's really got this one wrong.
KYL: Two points. The Democratically controlled Congress almost couldn't pass it because every Republican voted against it. And when Scott Brown was elected from Massachusetts, the liberals thought they lost until Nancy Pelosi pulled out the procedural gimmick of the so-called budget reconciliation process, sending it back to the Senate that could pass it with less than majority that is normally required in cases like this. And at the time it was passed and this day the American people oppose it by two to one. So it's not exactly like it's a really popular thing that the court would be overturning here.
VAN SUSTEREN: No, it isn't. I think it's unusual for president to strike out at the Supreme Court. Anyway, senator, thank you, sir.
KYL: Thank you, Greta.
In a piece published at her blog Monday evening, Van Susteren went further:
President Obama is just being dopey … he knows better. [...]
And what is really dopey on the part of the President is seen below in the red text. He wants YOU to think because it was passed by a ‘strong majority of a democratically elected Congress’ (his words) that the statute should necessarily stand and is constitutional.
Is he out of his mind? NOT ONE MEMBER OF CONGRESS READ THE BILL SO NOT ONE HAD ANY CLUE WHAT HE OR SHE WAS VOTING FOR. Is that his “strong majority” upon whom the American people should rely for constitutionality? People who never even read it? Really? That is so ..dopey.
Indeed it is, Greta. Indeed it is.
