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President Obama, Chief Justice Roberts and the Constitutional Do-Over

After a spectacular verbal wipeout at President Obama’s first inauguration, Mr. Obama and Chief Justice Roberts conducted a do-over of the presidential oath of office. Now, as the Supreme Court prepares to hear a second challenge to the president’s health care law, Mr. Roberts has an opportunity for another redo that could fix a far greater debacle featuring the chief justice and the chief executive.

The public face plant of the two Ivy Leaguers surprised adoring elitists who make it their business to fawn over academic and professional credentials.

Mr. Obama, the first African-American president of the Harvard Law Review, boasted “a movie-star smile and more than a little mystique,” gushed the Chicago Sun-Times. He was called the “greatest orator of his generation” with the “rhetorical skill” and “ability to captivate and inspire audiences with his powerful speeches,” cooed the BBC. He had been elected on a “great flame of ambition and excitement,” said Piers Morgan. He was “the next messiah,” according to Barbara Walters.

For his own part, Mr. Obama was no less impressed. “We are the ones we’ve been waiting for,” he had announced, “We are the change that we seek.” The moment of his nomination in 2008, he said, was “the moment when the rise of the oceans began to slow and our planet began to heal.”

The chief justice, too, had his own unnatural talents. Planet-healing does not appear on Mr. Roberts’s resume, but his curriculum vitae still includes enough accomplishments to choke a horse. As a 13-year-old prep school applicant, he wrote, “I won’t be content to get a good job by getting a good education, I want to get the best job by getting the best education.”

Mr. Roberts went on to become the youngest chief justice since John Marshall. Along the way, he racked up one achievement after another, including top honors from Harvard College and Harvard Law School. During his Senate confirmation hearings, even Democrats acknowledged that Mr. Roberts was “brilliant, talented and well qualified,” and one senator recognized him as “the finest appellate lawyer of your generation.”

So what happened when the perfect president-elect and the perfect chief justice took the dais on that perfect Inauguration Day for the oath of office prescribed in the constitutional text?

Nothing short of an oratorical slow-motion train wreck.

One of the largest global audiences in history tuned in to witness what the Associated Press called “the flub heard around the world.” Mr. Roberts led off, working without notes. Mr. Obama interrupted Roberts in the opening line. The chief justice then rearranged the oath’s wording, which seemed to throw Mr. Obama off, and he stopped abruptly. Mr. Roberts attempted to correct himself by repeating a botched phrase. Then the president-elect repeated the original,
incorrect version. The inhabitants of our still-healing planet collectively cringed.

After Mr. Obama finished his bungled oath, Michelle Obama gave him a raised eyebrow. Legal experts raised eyebrows as well, questioning whether the flawed recital had indeed vested Mr. Obama with presidential authority. As a result, Messrs. Roberts and Obama met again later for a constitutional do-over in which the president recited the oath properly, as required.

Now, another constitutional do-over is imminent as the Supreme Court prepares to hear arguments in King v. Burwell. The case involves a statutory challenge to the Patient Protection and Affordable Care Act of 2010, more commonly known as ObamaCare.

Three years ago, as everyone remembers, Mr. Obama the former constitutional law professor lectured the justices that they could not possibly overturn his law. “I am confident,” he said, “that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Soon afterward, Mr. Obama got his wish. Mr. Roberts cast the deciding vote to uphold ObamaCare, explaining in an illogical muddle of an opinion why the Constitution permitted Congress for the first time in the history of the Republic to require every citizen to purchase a product. Many legal observers consider Mr. Roberts’s decision an epic failure that makes the “flub heard around the world” seem trivial by comparison.

In the pending case, the challengers argue that the Internal Revenue Service exceeded its legal authority by making tax subsidies available to those who buy medical insurance policies on the federal exchanges established in 34 states, contrary to the statute’s text limiting the subsidies to those who purchase policies on state exchanges.

As written, the statute provides that “if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits,” according to ObamaCare architect Jonathan Gruber. If so, the millions who bought insurance on federal exchanges will lose their tax subsidies, the pool of insureds will shrink, premiums will balloon, and — the prediction goes — ObamaCare will collapse under its own weight.

As the Court prepares to hear oral arguments in King v. Burwell, all eyes once again are on Messrs. Roberts and Obama and the outcome of a far more significant constitutional do-over.

First published in the Washington Times, 3/3/15

About the author

Gayle Trotter

Gayle Trotter is a columnist, political analyst and attorney who regularly appears on TV, such as Fox News Channel, contributes to The Hill, The Daily Caller, Townhall and other well-known political websites, and is a frequent guest on radio shows across the country providing an insider’s view of Washington, DC. Read More

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