For Barack Obama, Law Professor, the Time to Lecture Is Now

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The president has been criticized for defending the health-care law while the Supreme Court is still in session. But perhaps, like Roosevelt 75 years ago, he should be even more vocal.

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Compare the words and deeds of two Democratic presidents, both in their first term, both navigating the ship of state through rough economic waters, both dealing squarely with two separate editions of a very conservative Supreme Court. Franklin Delano Roosevelt's struggle with the justices of his era is both legendary and instructive. He famously lost the battle over his ill-conceived court-packing plan. But he won the war over much of his landmark legislation when the Court's conservatives either retired (Justice Willis Van Devanter) or timely changed their minds (Justice Owen Roberts).

President Barack Obama's struggles with the current Court are also well documented. In 2010, he famously criticized the Court's conservatives for their Citizens United ruling, a 5-4 decision along ideological lines which has had enormous (and, you could argue, dire) political consequences for the 2012 election. And now, after last week's oral arguments over the Affordable Care Act, President Obama is confronting the very real possibility that his administration's signature piece of federal legislation, the new health-care law, in whole or in part, will be tossed aside by the same five justices.

When President Obama on Monday (and again on Tuesday) offered his own legal analysis, when he accurately identified the hypocrisy the health-care law's defeat would reveal about "judicial activism," he raised for renewed public consideration the question of what a president should or should not say while a Court case is pending. The president's comments were immediately criticized. On the left, Andrew Rosenthal of The New York Times wrote that the president missed an opportunity to more directly defend the law. On the right, Senate Minority Leader Mitch McConnell (R-Ky) called the remarks a "beyond distasteful" attempt to intimidate the justices. Even the often rogue 5th U.S. Circuit Court of Appeals somehow interjected itself into the fray.

Everything a president says has a political component to it. And virtually everything that has been said about this particular law has come to be viewed through a political prism. To its detractors, the law is a full assault on freedom -- the freedom to refuse to be part of a national policy with which they don't agree. To its supporters, the law is now a political bellwether, signalling both a limit to progressive legislative action and the constitutional peril a Republican-controlled Congress and White House would bring. In this context, and especially compared with the past, what President Obama said was a virtual mash note to the justices.

ROOSEVELT

On May 27, 1935, the United States Supreme Court announced its decision in Schechter Poultry v. United States. The justices ruled unanimously that Section 3 of the National Industrial Recovery Act, another one of Roosevelt's New Deal programs, represented an unconstitutional delegation of legislative authority to the executive branch. Four days later, an angry and frustrated president called reporters in for a press conference. Here's how Jeff Shesol, in his masterful book Supreme Power, describes what happened next:

He turned now to Schechter itself. "The implications of this decision," he said, "are much more important than almost certainly any decision of my lifetime or yours, more important than any decision probably since the Dred Scott case, because they bring the country as a whole up against a very practical question. That is in spite of what one gentleman said in the paper this morning, that I resented the decision. Nobody," he said, "resents a Supreme Court decision. You can deplore a Supreme Court decision, and you can point out the effect of it."

Which is what he did -- point out its effects -- for the remainder of his press conference. It was a remarkable performance. For nearly an hour and a half, Roosevelt spoke without notes, without interruption, slowing only occasionally to replace the cigarette in his ivory holder. Never had a president talked so directly, so extensively, or with such ease and fluency about the Constitution -- its interpretation, its evolving meaning. His tone was calm and firm. His smile, which rarely left his face, failed to conceal his seriousness or, on occasion, his irritation.... Like a tenth justice delivering a dissent, he dissected the opinion.

Shesol told me Tuesday that while "FDR was generally pretty careful not to lobby (or warn) the Court about a pending decision... he did launch his court-packing plan -- and set his supporters loose on the Court -- at a time when the Court was considering the fate of Social Security and the National Labor Relations Act, both of which he (and pretty much everyone) assumed the Court would strike down." The Court, of course, dramatically upheld those statutes after a series of presidential speeches like this one from March 4, 1937:

The Democratic Administration and the Congress made a gallant, sincere effort to raise wages, to reduce hours, to abolish child labor, to eliminate unfair trade practices. We tried to establish machinery to adjust the relations between the employer and employee. And what happened? You know who assumed the power to veto, and did veto that program. The Railroad Retirement Act, the National Recovery Act and the Guffey Coal Act were successively outlawed as the Child Labor Statute had been outlawed twenty years before.

Soon thereafter the Nation was told by a judicial pronouncement that although the Federal Government had thus been rendered powerless to touch the problem of hour and wages, the States were equally helpless; and that it pleased the "personal economic predilections" of a majority of the Court that we live in a Nation where there is no legal power anywhere to deal with its most difficult practical problems -- a No Man's Land of final futility....

Furthermore, court injunctions have paralyzed the machinery which we created by the National Labor Relations Act to settle great disputes raging in the industrial field, and, indeed, to prevent them from ever arising. We hope that this Act may yet escape final condemnation in the highest court. But so far the attitude and language of the courts in relation to many other laws have made the legality of this Act also uncertain, and have encouraged corporations to defy rather than obey it...

On March 9, 1937, in one of his fireside chats, President Roosevelt was even more blunt. To the American people, he said.

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress -- a super-legislature, as one of the justices has called it- reading into the Constitution words and implications which are not there, and which were never intended to be there...

We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution -- not over it. In our Courts we want a government of laws and not of men.

OBAMA

On Monday, by contrast, President Obama came before microphones and reporters to talk about another controversial federal statute. He didn't spend 90 minutes or so on topic. He didn't offer up legislation designed to reduce the Court's power. He didn't promise to save the "Constitution from the Court and the Court from itself." Of the Affordable Care Act, the federal health-care law now under review by the Supreme Court, the law that got buffeted around pretty good last week by the Court's conservative members, President Obama said merely this:

The direct quotes are:

I am confident 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...

I just remind conservative commentators that for years we have heard 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 am pretty confident that this Court will recognize that and not take that step...

As I said, we are confident this will be over -- this will be upheld. I am confident this will be upheld because it should be upheld. And again, that is not just my opinion. That is the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this piece of legislation or my presidency.

On Tuesday, at an Associated Press luncheon, the President explained himself. He said:

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this. Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has. As a consequence, we're not spending a whole bunch of time planning for contingencies.

So I don't anticipate the Court striking this down. I think they take their responsibilities very seriously. But I think what's more important is for all of us, Democrats and Republicans, to recognize that in a country like ours -- the wealthiest, most powerful country on Earth -- we shouldn't have a system in which millions of people are at risk of bankruptcy because they get sick, or end up waiting until they do get sick and then go to the emergency room, which involves all of us paying for it.

Whatever else President Obama's comments mean, they aren't close to the line Roosevelt drew 75 years ago. And they don't even compare to the jaw-dropping remarks made over the past six months by Republican politicians -- like Newt Gingrich -- who believe it's a good idea to send federal marshals to the courts to enforce subpoenas against federal judges requiring them to appear before Congress to explain their decisions. I'm still waiting to hear Sen. Mitch McConnell and company call that pitch a "beyond distasteful" attempt to intimidate judges. When he does then he can blast the president.

Methinks the Court's defenders here protest too much. In order to be reasonably perceived as "threatening" the Court, Obama would have to say a whole lot more than "I am confident that this will be upheld because it should be upheld." Moreover, to have the "threat" charge stick, the president would have to separate himself from the mainstream views of the conservative legal establishment. Yet he hasn't. He's not saying much different at all, in fact, from what former Reagan Solicitor General Charles Fried said about the Affordable Care Act after last week's contentious argument before the Court.

TIME FOR A SPEECH

So perhaps the real question here is not whether President Obama, the constitutional scholar, has gone too far in rendering his opinion about the Constitution and the Care Act but instead whether he has not gone far enough. The American people may say they know an awful lot about the Care Act and its "individual mandate" -- the national conversation over that has gone on ceaselessly now for more than two years. But there is still a great deal of fuzziness over the role of the Supreme Court in evaluating federal legislation, and particularly federal economic legislation, which begs out for more explanation from the bully pulpit.

Last month, for example, a CBS News/New York Times poll revealed that nearly half of those Americans surveyed -- 48 percent -- were "confused" about the details of the Affordable Care Act. And millions of words already have been written about how poorly the administration, and its counterparts in Congress, explained the essence of the new law, and its constitutional underpinnings, to the public. So what would be so wrong with the president becoming a constitutional professor again, for only an hour or two, live on radio and television and online, to explain the Care Act and the Court's perceptions of the scope of its own review.

If Roosevelt could do it, why can't Obama? What's the difference between the Care Act and a future federal law that would force people to eat broccoli? Why is the health-care industry, by its very nature, national in scope and different from many other industries? Why wouldn't the Court give deference to such federal economic legislation? Justice Anthony Kennedy last week wondered whether the law wouldn't change the relationship between the government and an individual in a "fundamental" way -- why does the president think that is wrong? And what other "limiting principle" would the president apply to the case?

He already owns the law -- it's called Obamacare now even by those who support it, including Obama himself -- so why shouldn't he be able to answer those questions and many more in public? The exercise wouldn't "threaten" the Court's ongoing deliberative process any more than the Court's public arguments last week threatened Congress or the White House. The justices aren't infallible. They aren't delicate flowers who mustn't be tussled. President Obama should fully speak his mind, now, before the Care Act rulings come out in June. There is plenty he can say about the law, and legal precedent, that won't bring the Court down. In fact, it just might raise it up. Time for class, Mr. President.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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