Last week, President Obama clumsily announced that it would be "unprecedented" for the Supreme Court to strike down "a law that was passed by a strong majority of a democratically elected Congress." This week, his words are already having an effect in the courts—but not the effect he hoped for. Yesterday, in another case challenging Obamacare, the U.S. Court of Appeals for the Fifth Circuitordered Justice Department lawyers for a briefing on whether the Justice Department actually believes what the president said.
We can expect the Justice Department lawyers, with the help of the White House counsel, to walk back the president's statement in a hurry. In fact, President Obama is already walking it back himself, as Steve Hayesnoted last night.
But the president's most recent "clarification" is no great improvement on last week's mistake. In his re-explanation yesterday, President Obama—a former law professor,Harvard Law Review president, and "the best student that" Harvard's Laurence Tribe "ever had"—continued to demonstrate a surprisingly poor grasp on constitutional law and Supreme Court history.
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