The 'brilliant' Constitutional "scholar's" flexible definition of 'unprecedented'.

The President and his allies, after ramming through a major change in American life on a temporarily enhanced party line vote (an act that is truly unusual in American history) now seeks to intimidate the Courts into ignoring its patent unconstitutionality.  This is the act of people who don't believe there is any limit to their power.  This isn't American style governance at all.  Byron York has more.

But all that backing and filling -- including Carney's claim that Obama was misunderstood "because he is a law professor" -- was before the DOMA arguments made news. If the president was so concerned about a court overturning a duly constituted law passed by a democratically elected Congress, why was he urging a small group of unelected judges to strike down DOMA, a measure that won passage by a far greater margin than Obamacare?

The answer is, of course, that the administration is making a political argument for its positions, not a legal one. And perhaps counterproductively, the president's decision to bring up Obamacare's history in Congress could end up reminding the public of the tangled circumstances of its passage. Even with a huge majority in the House, Democrats barely passed the bill in the face of bipartisan opposition. And in the Senate, Obamacare succeeded as the result of a set of freakish circumstances that allowed Democrats to pass an unpopular measure into law.

Those circumstances included the wrongful prosecution of a Republican senator (Ted Stevens), resulting in his seat going to a Democrat; the defection of another Republican senator (Arlen Specter) to the Democrats; and a change in one state's laws (Massachusetts) to allow a Democratic governor to immediately appoint a Democrat to succeed the late Sen. Ted Kennedy and give the Senate a 60-vote Democratic supermajority. And then there were the policy payoffs to some Democratic senators who were undecided about the bill. Even then, Democrats held a filibuster-proof majority in the Senate for just 134 days before Massachusetts elected a Republican senator, Scott Brown, who ran specifically on the platform of stopping Obamacare. But in those 134 days, Democrats managed to pass an unpopular bill into law without a single vote to spare.

And so does Chuck Krauthammer.

With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.

Obamacare passed the Congress without a single vote from the opposition party – in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare, and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.

The president’s pre-emptive attack on the Court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized that there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.