The White House is aggressively defending President Obama's sharp criticism of the Supreme Court during Wednesday's State of the Union address, which appeared to prompt Justice Samuel Alito to mouth the reply: "That is not true." (See the video below)
The remarkable sight of a Supreme Court justice and the president of the United States contradicting each other during a State of the Union address, especially over a ruling from the constitutionally independent judiciary, immediately set talking heads abuzzing on cable television, and touched off a firestorm of commentary on the Internet.
"I don't recall any president ever attacking the Supreme Court so directly at a State of the Union," Tom Fitton, president of the Judicial Watch organization, tells Newsmax. "Obama's attack was a disgrace that undermines the rule of law."
In his address Wednesday, the president prefaced his remarks with the statement, “With all due deference to separation of powers. . .”
He then remarked: “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."
"Well,” he continued in reference to the controversial Citizens United v. Federal Election Commission decision, “I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong."
Immediately after the speech, the liberal blogosphere erupted.
Salon commentator Glenn Greenwald commented that Justice Alito's reaction was more serious than South Carolina GOP Congressman Joe Wilson's blurting out "You lie!" during Obama's speech to Congress last year.
Greenwald labeled it "a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court."
Firebrand liberal Rep. Anthony Weiner, D-N.Y, meanwhile, was quoted by Politico saying that Alito "deserved to be criticized, if he didn't like it, he can mouth whatever they want.
"These Supreme Court justices sometimes forget that we live in the real world," Weiner said. "They got a real world reminder tonight, if you make a boneheaded decision, someone's going to call you out on it."
The president's open scolding of the judicial branch — and Alito's response — triggered a sharp reaction from conservatives as well.
"I tell you, this is why people are disenchanted and are becoming more and more disengaged really from what their government is doing," former vice presidential candidate Sarah Palin told Fox News' Sean Hannity. "Because when we see an issue like this, words spoken that may not be true, coming from our president and embarrassing our Supreme Court and not respecting the separation of powers, we have a problem. And that is illustrated there by that justice mouthing those words, 'Not true.'"
"The president’s swipe at the Supreme Court was a breach of decorum," wrote election-law expert Bradley A. Smith of the Center for Competitive Politics wrote on National Review's The Corner, “and represents the worst of Washington politics — scapegoating ‘special interest’ bogeymen for all that ails Washington in attempt to silence the diverse range of speakers in our democracy.”
A broad range of experts challenged the accuracy of the president's assertions Thursday.
The Politifact.org fact-checking organizing evaluated Obama's statements and determined they were "barely true," adding, "We found Obama was exaggerating the impact of the ruling."
The president, who taught constitutional law at the University of Chicago before he ran for the U.S. Senate, was wrong on two counts, Judicial Watch's Fitton said: There was no century-old precedent in the case, and the ruling did not alter restrictions involving electioneering by foreign-based companies.
It was unclear from the video of the incident whether Alito's response objection was because of the president's suspect 100-year timetable or his controversial assertion that the court's decision would allow foreign corporations to meddle in U.S. elections.
Heritage Foundation senior legal expert Hans A. von Spakovsky tells Newsmax he can't recall a president scolding the Supreme Court during a State of the Union message before. "And what makes it even worse is he was patently wrong," von Spakovsky says. "I mean I'm just amazed that he would do that, and he's not even right."
The Supreme Court ruling in no way opens the door to foreign influences in U.S. elections, he says.
"There is a specific provision of the law which was not at issue in the case which prohibits foreign nations, and is specifically designed to include foreign corporations, from contributing or donating any money not just in connection with federal elections, but also with state and local elections," he tells Newsmax. "…And they can't make any independent expenditures for an electioneering communication. So that is just a flat out lie what he said about foreign corporations."
Von Spakovsky also says that the president's claim the precedent was 100 years old was also "flat-out wrong."
The president apparently was referring to was Tillman Act of 1907, which prohibited direct contributions to a candidate by a corporation.
Most legal scholars agree that last week's Citizens United ruling did nothing to alter that ban, however. Rather, it allows companies to spend money on advertising that favors a candidate they like, or that criticizes a candidate they oppose. Companies are also free now to place those ads within 30 days of an election.
The McCain-Feingold law that was the focus of the case took effect in November 2002.
The White House pushed back Thursday morning against the suggestion that the president had breached decorum by criticizing a ruling by an independent branch of government.
On ABC's Good Morning America, Vice President Joe Biden insisted, "The president didn't question the integrity of the court. He questioned the judgment of it." And Biden added, "I think [the ruling] was dead wrong and we have to correct it."
An anonymous White House official told Politico, “There is a loophole that we need to address and are working with Congress to address. There are U.S. subsidiaries of foreign-controlled corporations that could influence our elections because of this ruling."
The Supreme Court's public information unit did not respond to a Newsmax request for further clarification of Alito's remarks. Alito has not objected to the characterizations of his reaction in the media.
Justice John Paul Stevens, in his dissenting opinion to the Supreme Court's 5-4 ruling, warned that the ruling appeared to give foreign-based corporations the same First Amendment protection offered to individual Americans.
“The Court all but confesses that a categorical approach to speaker identity is untenable when it acknowledges that Congress might be allowed to take measures aimed at 'preventing foreign individuals or associations from influencing our Nation’s political process,'" Stevens wrote. "… Such measures have been a part of U. S. campaign finance law for many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers.”
The majority of justices obviously did not find Stevens' concerns persuasive, however.
The incident ironically came as the president attempted to renew his call for bipartisanship on Capitol Hill.
Von Spakovsky tells Newsmax that a larger concern is the president's attitude toward the independent judiciary branch. As a constitutional law professor, Obama once lamented on a Chicago radio station that "unfortunately" the Supreme Court had not sought to impose social-injustice remedies from the bench.
"I think this is reflective of a liberal or a left-wing ideology, that when the Constitution is in the way, you ignore it or change it," von Spakovsky says. "What the Supreme Court was basically doing was restoring the First Amendment from inroads on it unfortunately put in by Congress and prior court decisions.
"All of the arguments that have been made critical of this decision, they all haven't been constitutional arguments. They've all been policy arguments," says von Spakovsky. "People say, well, they don't like the policy of corporations being able to speak.
"Well, that's not a Constitutional issue. And the president in saying he wants to ignore this is basically saying he wants to ignore the First Amendment. That is dangerous."
Fitton tells Newsmax the presidential upbraiding also could intimidate justices "for fear of being attacked in person in front of a national audience."
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