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Obama gets court ‘activism’ wrong

Michael WadeEast Brookfield Mass. protests President Barack Obama's health-care lawn March 27 outside U.S. Supreme Court Washington.  |

Michael Wade,of East Brookfield, Mass., protests President Barack Obama's health-care lawn on March 27 outside the U.S. Supreme Court in Washington. | Charles Dharapak~AP

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Updated: May 11, 2012 8:07AM

His outburst last week wasn’t the first time President Barack Obama had attacked the Supreme Court. His verbal swipe at the high court in his 2010 State of the Union message was prompted, like his recent harsh words, by the justices’ daring to question the federal government’s assertion of unchecked authority in American life.

His first broadside against the court came after a court decision overturning a campaign-finance “reform” law restricting the First Amendment rights of unions and corporations. Obama said “the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign companies — to spend without limit in our elections.”

That case dealt with a campaign film about presidential candidate Hillary Clinton financed by the advocacy group Citizens United. In arguments before the high court, the government claimed Congress could ban political books, signs and Internet videos funded by corporations and distributed during an election season — even a 500-page book with only a single sentence advocating voting for a candidate.

The administration tried to walk back that claim by saying the law wouldn’t apply to books but just to “pamphlets.” Senate Minority Leader Mitch McConnell noted some of the most important documents in American history, such as the Federalist Papers and Thomas Paine’s “Common Sense,” fell into the pamphlet category.

The government had made a startling assertion of a right to censorship, demonstrating that if you give bureaucrats an inch, they’ll take a mile. The court wisely ruled to rein in government control of political speech.

More recently, the government made another claim of unbridled authority in saying the Affordable Care Act could mandate that Americans buy health insurance or pay a penalty. Solicitor General Donald Verrilli asserted that under the power to regulate interstate commerce, the government could force people into commerce so it could regulate commerce.

When asked what then were the limits on government power under the commerce clause, Verrilli offered none, only asserting that health insurance was unique because everyone would eventually need medical care. Justices quickly noted that other things affect everyone, from food to funerals. Other observers said that during World War II, an event that impacted every life, the government never tried to order all Americans to buy war bonds.

Obama reacted to the critical oral arguments by claiming it would be “unprecedented” for the court to overturn a law enacted by Congress. The White House spent days walking back that statement because it was simply wrong.

Obama, who once taught constitutional law, also was wrong in his criticism of the Citizens United ruling. Even liberal New York Times blogger Linda Greenhouse noted that the court had not overturned a century-old law against direct corporation contributions to politicians, only modern campaign finance law. Other experts noted the court left unchanged a law against contributions by foreign companies.

The issue in both cases was a government assertion of unbridled power. Republican presidential candidate Mitt Romney got it right in saying that the 2012 election offers a choice between Obama’s “government-centered” philosophy and the tradition of limited government and individual liberty at the heart of the American success story.

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