Monday, April 2, 2012

The FDR 'Channel'

"Hey, Obama - get yer feet off hour desk!"
 Trying to leave work to go home.

Trying to figure out why I can't finish the last three posts which I've begun over the past several weeks. 

Trying to understand why the President of the United States looks at the 'Three Branches of Government' and sees only a 'Singular Trunk'.

Mostly I'm trying to understand why a Constitutional scholar, a former President of the Harvard Law Review, and a Graduate of Harvard (AND Columbia - BONUS!) can't grasp the concepts in the following chart I 'borrowed' from a kid's website oriented for 5th Graders... 



I mean, seriously, can we look at the President's Constitutional Pedigree for a moment? 

The following information comes directly from Wikipedia:

Barack Hussein Obama II (i/bəˈrɑːk huːˈseɪn oʊˈbɑːmə/; born August 4, 1961) is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.

Born in Honolulu, Hawaii, Obama is a graduate of Columbia University and Harvard Law School, where he was the president of the Harvard Law Review. He was a community organizer in Chicago before earning his law degree. He worked as a civil rights attorney in Chicago and taught constitutional law at the University of Chicago Law School from 1992 to 2004. He served three terms representing the 13th District in the Illinois Senate from 1997 to 2004.


Why am I questioning the President's understanding of Constitutional Law?

Well, well, you know, 'cause he started it...

Obama issues stern language on Supreme Court health care decision
President Obama on Monday issued stern language to the Supreme Court of the United States regarding his health care law, expressing confidence "Obamacare" will not be overturned by the nation's highest court.

"I'm confident this will be upheld because it should be upheld," the president said Monday afternoon at a White House press conference that included ‪Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon, who are attending the North American Leaders' Summit. The president said overturning the law would be "an unprecedented and extraordinary step" and compared the court's rejection of the law to "judicial activism."

"For years what we've heard is the biggest problem on the bench was judicial activism," the president said, baiting conservatives who have long complained about justices' political agendas. The president stressed that the judges are "unelected" and noted that the law was passed by a democratically elected Congress.

Monday's comments were the first public warning the president has issued since the justices heard oral arguments last week on the constitutionality of the law, which includes an individual health care mandate.


"I'm confident this will be upheld because it should be upheld" the President said...



To better understand why our current President feels as he does regarding the Supreme Court's role in our government, we need to look 75 years into the past. 

We need to look to one of the President's inspirations for a bit of 'back story'...


FDR vs. The Supreme Court, May, 1935

Just three weeks after its defeat in the railroad pension case, the Roosevelt administration suffered its most severe setback, on May 27, 1935: "Black Monday". Chief Justice Hughes arranged for the decisions announced from the bench that day to be read in order of increasing importance. The Supreme Court ruled unanimously against Roosevelt in three cases.
...

Roosevelt reacts
Upon learning of the unanimity of the three court decisions, Roosevelt became distressed and irritable, regarding the opinions as personal attacks. The Supreme Court's decision in Humphrey's Ex. particularly stunned the administration. Only nine years earlier, in Myers v. United States, the Taft Court had held the President's power to remove executive officials was plenary. Roosevelt and his entourage viewed Sutherland's particularly vicious criticism as an attempt to publicly shame the President and paint him as having purposefully violated the Constitution.
After the decisions came down, Roosevelt remarked at a May 31 press conference that the Schechter decision had "relegated [the nation] to a horse and buggy definition of interstate commerce".


The comment lit a fire under the media and indignated the public. Scorned for the perceived attack on the court, Roosevelt assumed a diplomatic silence toward the court and waited for a better opportunity to press his cause with the public.

An April 1933 letter to the president offered the idea of packing the Court: "If the Supreme Court's membership could be increased to twelve, without too much trouble, perhaps the Constitution would be found to be quite elastic."

The next month, soon-to-be Republican National Chairman Henry Plather Fletcher expressed his concern: "[A]n administration as fully in control as this one can pack it [the Supreme Court] as easily as an English government can pack the House of Lords."

...

The Bill's Contents
 
  
The provisions of the introduced bill adhered to four central principles:
  • Allowing the President to appoint one new, younger judge for each federal judge with 10 years service who did not retire or resign within six months after reaching the age of 70 years;
  • Placed limitations upon the number of judges the President could appoint: no more than six Supreme Court justices, and no more than two on any lower federal court, with a maximum allocation between the two of 50 new judges just after the bill is passed into law;
  • mandated that lower-level judges be able to float, roving to district courts with exceptionally busy or backlogged dockets; and
  • provided that lower courts be administered by the Supreme Court through newly created "proctors"
[Roosevelt, in essence, was looking to re-write those sections of The Constitution having to do with the Judicial Branch - sure, why not?  Who needs 'three branches of government as a 'checks and balance' - what did those Founders know anyway?]


Public Reaction

After the proposed legislation was announced, public reaction was split. Since the Supreme Court was generally conflated with the U.S. Constitution itself, the assault against the Court brushed up against this wider public reverence. Roosevelt's personal involvement in selling the plan managed to mitigate this hostility. In a speech at the Democratic Victory Dinner on March 4, Roosevelt called for party loyalists to support his plan.

Roosevelt followed this up with his ninth Fireside chat on March 9, in which he made his case directly to the public. In his address, Roosevelt decried the Supreme Court's majority for "reading into the Constitution words and implications which are not there, and which were never intended to be there". He also argued directly that the Bill was needed to overcome the Supreme Court's opposition to the New Deal, stating that the nation had reached a point where it "must take action to save the Constitution from the Court, and the Court from itself".

...
A series of Gallup Polls conducted between February and May 1937 showed that the public opposed the proposed bill by a fluctuating majority. By late March it had become clear that the President's personal abilities to sell his plan were limited:
 

Over the entire period, support averaged about 39%. Opposition to Court packing ranged from a low of 41% on 24 March to a high of 49% on 3 March. On average, about 46% of each sample indicated opposition to President Roosevelt's proposed legislation. And it is clear that, after a surge from an early push by FDR, the public support for restructuring the Court rapidly melted.

Reaction against the bill also spawned the National Committee to Uphold Constitutional Government, which was launched in February 1937 by three leading opponents of the New Deal. Frank E. Gannett, a newspaper magnate, provided both money and publicity.


I guess the question I'll leave you with this evening is this: 

Where is this generations' Frank E. Gannett?

As Congress continues to cede its power to the Executive Branch the only thing standing in the way of a singular 'Executive' trunk (where three branches once stood) IS the Judicial Branch. 

The President has no qualms of threatening the Judicial Branch because he seems to be under the mistaken impression that HE wields all Federal Power in Washington.  He even takes time out of his State of the Union Speech to chide them publicly for fulfilling their Constitutionally-mandated duty - of evaluating federal legislation against the specific mandates provided by the U.S. Constitution.    

Whether or not the Supreme Court finds the President's Health Care Legislation Constitutional or not, we have a larger issue to contend with - the fact that the President believes himself to be the sole titular head of the government. 

Based upon today's verbal example of how little the President actually knows about the Constitution, I suspect that he never made it into Fifth Grade.  If he had, he would have a vague understanding of the Chart I inserted above. 

Maybe they weren't teaching the US Constitution when he was going to school in Jakarta? 

And if they were not, can the parents of the students who took Barack Obama's Constitutional Law class at the University of Chicago get their money back?

Shoot, I didn't take the course, but somehow I feel that this President owes US a lot.

We, on the other hand, don't owe him a thing. 

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