Friday, January 29, 2010

Unprecedented

Barack Obama is the President of the United States and allegedly a constitutional law expert and former professor of law. He routinely throws the word "unprecedented" around whenever he doesn't like something a conservative does or says. But in the law, that word has meaning, and at the State of the Union Address, he used it again. And as so often happens, he was wrong.

Contrary to where you think this post may be going, it's not going to be an in-depth discussion of precedent or the recent Supreme Court decision freeing unions and corporations to exercise their free speech rights without the constraints of portions of McCain-Feingold (which I find far more unconstitutional than did the Supremes).

What was utterly unprecedented was the President of the United States attacking a Supreme Court decision during a State of the Union Address. Even FDR, when preparing his court-packing scheme, didn't use his office to attack the Supreme Court during the annual address on the state of the nation. He made plenty of those speeches elsewhere, but not in the well of the United States Congress.

Worse than that, the president either lied, obfuscated, or simply got the whole issue in Citizens United wrong. If you're going to take the unprecedented step of attacking a Supreme Court decision on the issue of precedent, you ought at least to know what you're talking about. The annual event is one of those rare times when all three branches of the federal government are present. They are there to hear plans, hopes, an accurate but optimistic assessment of the nation's condition, and ideas for the future of the nation. They are not there to hear a political attack on a judicial decision.

For a more elaborate discussion of my opinion of Obama's ignorance of the law and history as it relates to this post, see my earlier article "Take A Look, Professor Obama", (January 25, below). I'll now add an expansion and a fact that wasn't in my original post, but is now more relevant after Obama's speech. The Citizens United case merely removed the restrictions on corporate and union issue and candidate advertising. It affirmed the legal and very much precedented prohibition on direct contributions that "intertwine" the campaigns and the entities supporting them.

The UAW can't actively coordinate an Obama candidacy with interlocking boards and funds with the Democratic Central Committee any more than General Electric can actively coordinate an anti-abortion election campaign with the Republican party in the same manner. The UAW is now simply free to publish its own "Vote for Obama" campaign, and GE is free to conduct its own anti-abortion campaign. As a side note, Obama was wrong about a related issue. Foreign nationals, including foreign corporations are excluded from participation in or contributions to federal, state and local elections activities under longstanding statues that have nothing to do with the case. If he wants to rid our system of foreign influence, he's got the wrong case.

As for history and precedent, the Supreme Court upset the precedent set in Austin (twenty years old) and McConnell (six years old), and held that ". . . stare decisis does not compel the continued acceptance of Austin and by incorporation, McConnell. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether." So they reversed twenty years of questionable precedent by returning to precedent that went back to 1789. Justice Scalia added the telling comment that "the Supreme Court did not invalidate a federal law on First Amendment grounds until 1964." Precedent, therefore, is a very shaky ground to be criticizing the Supreme Court on in the first place when it comes to the current brouhaha.

That said, what really irritates me is that the left-leaning mainstream press and TV have found the event unprecedented as well. But not for the same reasons. It was just fine for Obama to politicize a judicial decision during the State of the Union Address (and get it wrong), but the liberal talking-heads and pundits are focusing on the brief shot of Justice Alito in the audience shaking his head and mouthing the words "not true." And what does the left call Justice Alito's reaction? You guessed it--unprecedented. How dare he show disapproval during The Great One's brilliant attack and misstatement of the law? Aw, gimme a break! I would have preferred him to have jumped up and shouted "liar," but that would have been very unjudicial. Alito merely indicated he thought the words were untrue, but he did not call the president a liar. I'll go him one better. The president is a liar, a notorious liar, a facile liar, and a dirty-rotten liar. Now I feel better.

20 comments:

Tennessee Jed said...

Hawk - in this morning's Knoxville fish wrap, the headline for the AP story was "Alito comments spark controversy." Now no Republican has ever openly shown such disrespect to the court before during SOTU, but if one had, the line would have read "president utters unprecedented attack on SCOTUS."

Me thinks it is only wrong if the disrespect shown is for Obama

patti said...

TRUE DAT!

LawHawkSF said...

Tennessee: The MSM liberals weren't thrilled with the state of the union address, but they're still in bed with him. Any ridiculous, nonsensical way to make Republicans the bad guys will be grabbed, even when it's a Supreme Court justice. They have babbled on for years about speaking truth to power. Now that they're the power, they don't want to hear the truth--and they lie about it.

Writer X said...

I think the only people who were impressed when Obama stomped his loafers and cried "WAH!" at the Supreme Court were the fringe left. And a couple of stupid politicians. I do think that this is now backfiring on him as it's slowly coming out (more on blogs, obviously, than in most of the MSM) that the "brilliant" former law professor is anything but. His so-called analysis of the recent decision confirms it. And, really. Who's writing his speeches? A high school flunkie?

Going forward, I hope the President continues with these unhinged moments.

StanH said...

I can tell Lawhawk, you’ve been ready to tear Barry a new one on his SOTU spectacle most especially his disregard for the truth. I didn’t understand the legal reasoning for Alito’s response, but understood it as an affront to one branch of our government. But as I began to hear and read the legal side, I now understand it to be not only tacky, but also a lie, on legal grounds.

AndrewPrice said...

What amazes me is the hypocrisy. When their court was overturning 200 year old laws to institute leftist ideas, they kept saying that precedent can't stand in the way of doing the right thing. But now that it's going against them, they cry like wronged babies. Tough.

LawHawkSF said...

WriterX: The Citizens United case was a partial rejection of Mc-Cain-Feingold, and was occasionally difficult to fathom. I know that a lot of good people applauded "the end of McCain-Feingold" when it didn't actually go as far as I would have liked. But the law is a harsh mistress, and often obscure. That's why God (or Satan) invented law professors. There's simply no excuse for an alleged constitutional law professor from Harvard and U of Chicago to make such a glaring mistake, particularly about foreign corporations and foreign influence. Completely 180 degrees wrong. Only the use of such a gross distortion in a state of the union address is equal in the enormity of the remark itself.

LawHawkSF said...

StanH: I watched him make legal error after legal error during the campaign, and then after his election. But this topped them all, both because of the location of the place he chose to continue his low-life approach to politicizing nearly everything, and his complete disregard for the truth. I am now more convinced than ever that this bottom-feeder never saw the inside of a classroom at either Harvard or Chicago, and saw the Constitution only long enough to toss it on the bonfire.

It's one thing to misinterpret the law or disagree on the reasoning, quite another simply to make a mistake a first-year law student at Doofus Tech Online wouldn't make.

LawHawkSF said...

Andrew: So, so true. The "living constitutionalists" have been dismantling the heart of our form of republican government and separation of powers for half a century with great glee. Still, even Warren and Blackmun could never have gotten any case this wrong. And worst of all, it's a First Amendment case, and as Justice Scalia pointed out, the history of reversing Congressional free speech legislation goes back only to 1964. Can anyone say "Warren Court?" "Hypocrite" barely skims the surface of this man's ignorant, evil nature.

Tam said...

He puts the "con" in con-law.

LawHawkSF said...

Tam: And the law in "lawless."

HamiltonsGhost said...

Lawhawk--Do they make a dunce-caps for law students?

AndrewPrice said...

Well said Tam! LOL!

LawHawkSF said...

HamiltonsGhost: They do, and I wore it more than once in my real property classes. Unfortunately, when Obama finished law school, they retired his number and the hat, and all the other law schools did the same thing.

CalFederalist said...

Lawhawk. ". . . when Obama finished law school, they retired his number and the hat, and all the other law schools did the same thing."

I think they retired all their academic standards too.

LawHawkSF said...

CalFed: Your point is well-taken, and your objection is sustained. (sound of gavel coming down)

LawHawkSF said...

JoelFarnham: If you're reading this, I somehow missed your comment from the 26th, so I've posted one now at that site: Take A Look, Professor Obama.

BevfromNYC said...

Thank you, LawHawk. I thought I had read the opinion incorrectly after reading the comments posted on Huffpo. I was beginning to doubt myself. I mean, how could I possibly have a better understanding of a supreme court decision than Barbra Streisand, singer and scholar! She was Yentl for goodness sake!

http://www.huffingtonpost.com/barbra-streisand/we-the-corporations-i-don_b_440748.

I think the MSM had 3x the number of cameras trained on each attendee to catch the slightest twitch that could be interpreted as "YOU LIE". I predict that fewer members of the SC will attend future SOTU addresses by Obama.

BTW, did anyone see how frail Ruth Bader Ginsburg looked? I was shocked.

LawHawkSF said...

Bev: Maybe Obama's plan is to replace Ginsburg with Streisand. Babs is at least as qualified as Sotomayor.

AndrewPrice said...

Bev, She looked like some sort of movie-creature -- very strange.

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