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.