By Jack Minor
Barack Obama’s argument that the Supreme Court should not reject Obamacare because it would be an “unprecedented” move against the will of a “democratically elected” Congress means that his Department of Justice should be supporting, not opposing, the federal Defense of Marriage Act, according to legal analysts.
Obama’s DOJ, in what appears to be payback for homosexuals’ support for Obama’s election in 2008, announced earlier it would not defend the federal DOMA, which defines for all federal purposes a marriage being between only a man and a woman.
However, several legal experts have pointed out that the arguments from Obama regarding Obamacare, and DOMA, reveal a double standard.
“He apparently wasn’t thinking about the implications of his statements on Monday,” Mathew Staver, founder of Liberty Counsel said. “His comments were directly contrary to what he is doing with the Defense of Marriage Act where he is arguing that law, which unlike Obamacare was passed overwhelmingly by both houses of Congress, should be declared unconstitutional.”
Last week the United States Supreme Court heard three days of oral arguments over the constitutionality of Obamacare, which former house Speaker Nancy Pelosi called Obama’s “crown jewel.”
During the arguments several justices appeared dubious of the administration’s claim that the government has the right to force Americans to purchase a product, in this case health insurance, under the Constitution’s commerce clause.
Following the arguments rampant speculations ensued suggesting that the court appeared inclined to strike down the law on constitutional grounds. A decision isn’t actually expected for some months.
But on Monday, Obama was speaking at a joint press conference with President Felipe Calderon of Mexico and Canadian Prime Minister Stephen Harper when he was asked a question about the possibility the Supreme Court could strike down Obamacare.
Obama said if the justices were to do so it would amount to “judicial activism.”
“Ultimately, I’m confident that 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,” Obama said. “And I’d 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.”
However, his statements directly contradict his position on a law that passed with far more support than Obamacare.
The Defense of Marriage Act, which defines marriage as being strictly between a man and a woman, passed with strong bipartisan support on a 342-67 vote in the House and 85-14 in the Senate.
By contrast, Obamacare passed without any Republican votes.
Defenders of DOMA have noted that while the president’s suggestion that judicial review amounts to activism is incorrect, every argument he made on Monday is actually more applicable to DOMA than to Obamacare.
Last year the administration announced it would no longer defend DOMA in the courts, however it then went farther than that and has argued multiple times that judges should declare the law unconstitutional.
Congress was forced to defend DOMA after Obama’s Justice Department announced last year it would refuse to carry out its responsibility to defend the law.
Staver said based on the president’s statements on Monday, he should be even more vigorously defending the Defense of Marriage Act.
“That law was passed overwhelmingly with strong bipartisan support and signed into law by a democratic president. If that’s how he feels about the healthcare law then he should vigorously defending DOMA. That he isn’t just shows how deceptive this guy is.”
“The brazenness of this president is amazing,” Rena Lindavaldsen, special counsel at Liberty Counsel said. “In DOMA legislation where Congress is well within its grounds, and for the court to overturn that would definitely be outside the scope of what the court should do and yet that is what this president is asking.”
She went on to say if the Supreme Court were to declare Obamacare unconstitutional it would be fully acting within the scope of its duties.
“That is what the Supreme Court is supposed to do when one branch of government oversteps its authority. However, when it comes to defining marriage Congress is well within its grounds,” he said.
On Tuesday, after facing criticism, the president appeared to back off from his remarks, however he still insisted the court should defer to Congress.
“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,” Obama said.
“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.”
Even Rush Limbaugh has noted Obama’s hypocrisy on the issue, saying on Wednesday’s, “Now, this administration said not long ago they’re gonna stop defending the Defense of Marriage Act. Now, the day after Obama goes out and says, ‘It’s unprecedented; the Supreme Court’s never overturned a law,’ his own Department of Justice is asking the First Circuit to strike down the Defense of Marriage Act.”
The president’s remarks appear to have struck a raw nerve with members of the judiciary. In an apparent swipe at the administration, Texas Judge Jerry Smith with the Fifth Circuit Court of Appeals ordered the Justice Department to provide a letter indicating whether the Justice Department agreed with Obama’s statements that it is inappropriate for “unelected judges” to strike down acts of Congress that enjoyed what the president called a “broad consensus and majorities in both houses in Congress.”
And in what some have said was akin to a teacher disciplining a child in school the judge said, “The letter needs to be at least three pages, single spaced, no less and it needs to be specific. It needs to make specific reference to the president’s statements.”
Staver says the judge’s statement is a dressing down of Holder’s Justice Department over the president’s statements.
“It is a dressing down and very unusual for a judge to use such language,” he said.
Elaine Donnelly, founder of the Center for Military Readiness, says the judge had good reason for the instructions because the administration has frequently responded to congressional requests with short non-descriptive answers.
“There have been cases where the House Armed Services Committee has sent requests to the Pentagon asking questions on what the regulations for implementing LGBT law are,” she said. “What you normally get from this administration is simply one-liner dismissals. The judge’s decision asking for a detailed explanation is very wise because the administration typically does not do that.”
Donnelly said the president knows full well that the court has the right to strike down laws.
“Obama has put himself in a difficult position here with his double standard. The administration has been caught in its duplicity once again and he is taking a huge risk trying to bully the courts,” he said.
Brad Dacus, of Pacific Justice Institute, said Obama has it “exactly backwards on marriage and health care.”
“Reaffirming what Western civilization has always believed about marriage is not revolutionary. The explosion of federal power we are seeing as epitomized by the health care takeover – now that’s revolutionary, and it must be reined in by the Supreme Court,” he said.