Some of you are probably wondering what all of the uproar in the media regarding the President’s recent remarks on the Supreme Court’s role and the challenge to the Affordable Care Act (also known as “Obamacare”) is about. On April 2, 2012, the President said in a news conference that
“Ultimately, I’m confident 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.”
President Obama taught constitution law at the University of Chicago and is suggesting that if the Supreme Court strikes down Obamacare, such a decision would be an “unprecedented, extraordinary step,” amounting to “judicial activism or a lack of judicial restraint – that an unelected group of people (the Supreme Court) would somehow overturn a duly constituted and passed law.”
“Strong Majority.” The Affordable Care Act was not passed by a “strong” majority, the vote in the House was 219 to 212, all Republicans and even 34 Democrats voting in opposition to Obamacare.
“Unprecedented.” The “unelected” federal judges “overturn . . . duly constituted and passed law[s]” all the time – maybe not all the time, but certainly on many occasions if the laws are inconsistent with the U.S. Constitution. It is neither “unprecedented” nor “extraordinary” and does not amount to judicial activism; rather it is precisely what judicial review is all about. In 1803, in Marbury v. Madison (5 U.S. 137), Justice Marshall declared that judges must decide what the law is, and must be guided by the principals that the Constitution overrides any act of the Legislature.
“It is emphatically the province and duty of the Judicial Department [the courts] to say what the law is. . . . if then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
The President was challenged the next day in a press conference and attempted to correct what he had said earlier stating that he was referring to overturning laws “on an economic issue” and said that the courts had not done that since the 1930s.
On that same day, the 5th U.S. Circuit Court of Appeals in New Orleans took the Department of Justice to the woodshed over the President’s remarks and demanded that the Department of Justice explain to the Court – by noon on April 5 – and in no less than three pages, single-spaced that the federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitution infirmities exist. In response to the 5th Circuit’s demand, Attorney General Eric Holder submitted a letter to the Court stating in part:
“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed. . . . The power of the courts to review the constitutionality of legislation is beyond dispute . . . [but] the Executive Branch [the President] has often urged the courts to respect the legislative judgments of Congress. . . . The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. . . . The President’s remarks were fully consistent with the principles described herein.”
So, where should we come down on this? On the one hand, while the 5th Circuit Court judge calling the President to correct a statement amused me, the bizarre homework assignment not so much. The judge obviously used the President’s statement as a “civics teaching moment” to remind us all that the federal judges not only have the right, but the duty to strike down laws that are unconstitutional. President Obama, a teacher of constitutional law, was probably simply posturing politically. The 5th Circuit could have simply ignored the President’s ill considered comments, but this is an election year and there is a lot riding on the outcome of the Supreme Court’s review of the Affordable Care Act.
References: USA Today