As a candidate for President of the United States, Barack Obama promised to restore balance to the Constitution, after what many argued was a period of executive overreach, infringing on civil liberties and the balance of powers.
When he launched his campaign, he even referred to his past career as a “civil rights lawyer,” and a constitutional law teacher.
Once in office, however, Obama expanded executive powers even further, and led a 6-year assault on judicial independence.
The most recent example was on Monday, when Obama discussed the upcoming Supreme Court ruling in King v. Burwell, which challenges federal subsidies for Obamacare insurance policies in states that have not set up their own exchanges. The plaintiffs argue that the letter of the law bars such subsidies. Obama, citing “well-established statutory interpretation approaches,” said the case should be “easy” to throw out, and added: “Frankly, it probably shouldn’t have been taken up.”
It was “indecent,” in the words of Charles Krauthammer, for the president to attack the Supreme Court’s competence in advance of the ruling. But it was not the first time Obama has done so.
In April 2012, after oral arguments in the original Obamacare case (NFIB v. Sebelius) went badly for his side, Obama responded by challenging the power of judicial review itself, warning America lest an “unelected group of people would somehow overturn a duly constituted and passed law.”
That warning may have convinced Chief Justice John Roberts to change his vote in order to preserve the popular image of the Court. He issued an opinion that effectively rewrote the Obamacare penalty as a tax–a far more brazen form of judicial activism than anything Obama had described.
Later, in his second inaugural address, Obama again sought to direct the Court–this time on the gay marriage cases it was about to hear, suggesting they had a civic duty to rule the way he wanted.
Perhaps the worst incident was one that played out on live television in front of the entire nation, during Obama’s 2010 State of the Union address, as six of the nine Justices sat quietly in the House chamber. The President rebuked the Court for its decision in the Citizens United case, saying their decision would “open the floodgates for special interests–including foreign corporations–to spend without limit in our elections.” (Democrats, disgracefully, leapt to their feet in applause.)
When courts have ruled against his administration, Obama has tried to ignore or defy them. In 2011, a federal judge found the Obama administration in contempt of court for banning offshore oil drilling in the wake of the BP/Deepwater Horizon disaster, even after the policy had been struck down.
More recently, the Obama administration tried to snooker the federal judge in the lawsuit against Obama’s “executive amnesty” immigration policy, triggering an angry rebuke from the court.
Even Obama’s judicial appointments have shown disregard for the institution. He packed the D.C. Circuit, which had been balanced between Republican and Democratic appointees, in the hope that a heavy Democratic majority would shield his very ambitious executive agenda from challenge.
His two Supreme Court appointees, Sonia Sotomayor and Elena Kagan, were chosen not for their judicial experience (dubious in the former, absent in the latter), but rather their race and gender.
This is not how a President of the United States should treat the judiciary, or the Constitution.
The last to attempt anything similar was Franklin Delano Roosevelt, and even he ran up against the opposition of his own party, who were more well-steeped in constitutional principle than today’s crop.
For all his high-minded, professorial rhetoric on the campaign trail, Obama’s real attitude towards the Constitution is that it is a means to an end–and the judiciary better not get in his way.