Obama and SCOTUS

President Obama's comment about Citizens United v. FEC in his State of the Union Address was way out of line: its was completely unprofessional, at least disingenuous — if not a lie — and directed toward a national audience that could not possibly appreciate the subtleties of the Court's decision.

First, as Georgetown professor Randy Barnett notes, "[n]o one could reasonably believe in their heart that this was respectful behavior." Surely, as Barnett says, "[t]his is not to deny that the Supreme Court may be criticized. . . . But not when the justices are in attendance as a courtesy to him, seated as a captive audience on national television, while surrounded by hundreds of his political partisans." His comment was unprofessional, and as Barnett notes later in his piece, comparable to Rep. Joe Wilson's "You lie!" outburst a few months back: "No one denied the right of a congressman to criticize the accuracy of the president's remarks. The objection was to the rudeness and disrespect shown the president." Obama's criticism of the Supreme Court is analogous to the South Carolina congressman's disrespectful cry.

Second, as Barnett also notes, Obama's claim was patently untrue. Normally, I might be inclined to give him the benefit of the doubt: maybe he misread the opinion. But here, I cannot: President Obama is a Harvard Law graduate and a former "Senior Lecturer" on Constitutional Law at Chicago. The legal question addressed in Citizens United was enormous. Yet, as Barnett writes,

. . . the substance of [Obama's] remark itself . . . . was factually wrong. The Court's ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation. While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and "entities." Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.

How could Obama not recognize this plain truth? Thus, what else could his error be but a lie?

Finally, Obama's comments were purely for political gain, because he directed them at a national audience that could not possibly understand the subtleties of the Court's Citizens United decision. Any law student will tell you that before actually reading cases and analyzing judicial reasoning (and even after a brutal 1st semester workload!), it is very difficult to parse a judicial opinion to determine its meaning. President Obama must have that ability (I hope, for Harvard's sake), but the TV audience he spoke to does not. Obama misled the average viewer by distorting the Court's reasoning to score political points with a populist appeal.

I can only "hope" that the "change" America wanted in the 2008 election was not blatant disrespect for the judicial branch and the separation of powers provided for by our Constitution — that separation of powers which, by the way, he flippantly cast aside to begin his commentary.

Who Is This Coakley, Anyway?

Over the past week, I have read news that the special election to fill out the remainder of MA Senator’s Ted Kennedy’s term has suddenly become a competitive race. Apparently Republican Scott Brown has made great strides in both fundraising and the polls against Democrat Martha Coakley. What intrigues me about this race is that Brown has been able to make these strides by arguing a conservative platform of limited government, tax cuts and tough on terror in a state where registered Democrats outnumber registered Republicans 3-1. But what really has helped Brown in this race is the incompetence of the Coakley campaign. Over the past week it seems like one potential head slapper comes from each day. Whether stating in a public debate that there are no more terrorists in Afghanistan, Catholic doctors shouldn’t be in the emergency room or Curt Schilling was a Yankee fan, Coakley’s statements make Sen. John McCain’s presidential rallies look professional (yes, I did endorse him, you can stop chuckling now). But what really concern me about Coakley are some judgment calls she has made as an elected attorney, particularly the case of the Amiraults. I still think she has a 60-40 chance of winning this Tuesday, but to think that Brown even has a realistic shot of winning this race is befuddling to me.

- Mellow Yellow (Mellow Yellow is a new contributor who writes his own blog. Mellow has given me permission to re-post his comments.)

Abortion v. First Amendment

"You can have religious freedom," [Martha] Coakley says, but "you probably shouldn't work in an emergency room." Source

Ms. Coakley's indifferent approach to religious freedom is somewhat frightening.

Perhaps Ms. Coakley also thinks that if you believe in creationism you shouldn't be a science teacher in a state whose curriculum teaches evolution only? I think Ms. Coakley's opinion is just the tip of the iceberg in this issue.

It goes much deeper: should we foreclose a market to qualified workers because they have a moral disagreement with an obligation that the State wants to impose on them? Or, does it make more sense to protect a person's religious freedom and re-evaluate the policy that threatens that fundamental right, guaranteed by the U.S. Constitution? Does federal law that funds abortions in a way that forces pro-life hospital workers to aid in the performance of abortion violate the First Amendment?

See Doe v. Bolton; Maureen Kramlich, The Abortion Debate Thirty Years Later: From Choice to Coercion, 31 Fordham Urb. L.J. 783, 797-98 (2003-2004) (discussing the Court's holding in Doe, that government may pass laws protecting the conscience rights of health care workers).

Get There Fast, Then Take It Slow

In his December 29 article, "Unhealthy Arrogance," Thomas Sowell asks a great question: "Why [rush to pass a health care bill] especially since the legislation would not take effect until years from now?" Truly, if passing a health bill is so vital for the American people, why are Congress' proposals, that absolutely had to be rushed through Congress, designed to basically do nothing until after 2012?

Charles Krauthammer recently pointed out a similar issue with the health bills: they claim to reduce our deficit, premised on faulty assumptions and the fact that the major portion of their spending doesn't kick in until 2014! When you take a realistic look at the numbers, the health care bill doesn't do what Democrats claim, but exactly what its critics contend: it explodes our future deficits.

Why do this? Why ram an unpopular health care reform bill down the throats of your constituents, while tailoring the bill to not take effect until after the 2012 elections, when voter turnout is largest? Politics. I can't think of any other plausible explanation. I suppose you could say this is "politics as usual," but I think Congress' behavior is despicable.