Lost in the news this week about President Obama’s Supreme Court comments is the announcement that KSM and other 9/11 co-conspirators will be tried in a military commission. The announcement is news in and of itself, but there are some very important points to make about it in relation to the Supreme Court commentary about the Court’s role in judicial review.
Recall that when the Court in Boumediene decided that the Military Commissions Act of 2006 (MCA), which passed Congress with more votes than Obamacare, was unconstitutional, President Obama supported the decision. Think about that for a minute.
President Obama supported a monumental Supreme Court decision overturning a law that passed with bipartisan support and more votes in Congress than Obamacare received, and he later warned that the Court overturning a law that had less support in Congress than the MCA had would be unprecedented. In addition, the law (MCA) that he supported being struck down by the Court a few years ago is the basis for the military commissions his administration is authorizing (with some minor changes in the 2009 MCA that arguably do not fix the habeas corpus issues of the 2006 MCA found in Boumediene).
The President is backtracking his comments on the Supreme Court, which are troublesome in that it is unusual for a President to warn the Court while it is considering a case, but in addition to potentially crossing a line that generates questions about separation of powers, he has shown significant hypocrisy that needs to be highlighted.