I was both amused and surprised when I read about President Obama’s comments last Monday concerning the Supreme Court and its use of judicial review. President Obama stated:
“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."
And I—I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhh, an unelected, uhh, group of—of people would somehow overturn, uhh, a duly constituted and—and passed , uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, this court will recognize that, uh, and not take that step.”
Deciding the constitutionality of a law has been part of the judicial branch since Marbury v Madison (1803). Chief Justice John Marshall writing in the opinion of the court for this case stated:
It is emphatically the province and duty of the Judicial Department 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 Legislative, the Constitution, and not such ordinary act, must govern the case to which they both apply.
It matters very little if the law being review was passed by “ a strong majority of a democratically elected Congress.” (By the way, Obamacare passed the Senate by a 60-40 vote along party lines and a 219-212 vote in the House with 34 Democrats joining the Republican minority in voting against it. Not what I would call a “strong majority”, but I suppose the President is entitled to his delusions.) The only question the Supreme Court is interested in is how well the law squares with the Constitution.
In the Federalist Papers #78, Alexander Hamilton pointed out why unconstitutional acts by Congress are not real laws and why the Judicial Branch has the duty and right to rule against those acts.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
If the Supreme Court strikes down Obamacare because it exceeds the authority of Congress to regulate commerce according to the intent of the writers of that portion of the Constitution it is not due to judicial activism but simply the result of the justices doing their jobs . This is why judicial review serves as a one of the checks and balances need to keep all three branches in line with the Constitution. What I find both amusing and disturbing is that Mr. Obama, a man that has billed himself as “a constitutional law professor” for years, appears to be ignorant of judicial review and its function in maintaining balance in our system of government.. On April 3, Dean Singleton, the chairman of the Associated Press, pointed out to the President at a Washington D. C. luncheon that the Supreme Court has been over turning laws passed by Congress since its beginning. Mr. Obama replied:
Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre New Deal.
There are several small errors with the President’s comments. (By small I mean only the size of an elephant) First Lochner was a 1905 suit that involved a New York State law and not a law passed by Congress. Lochner was a landmark Supreme Court case because it set a precedent that the right to contract was implicit in the due process clause of the 14th Amendment. This would last until West Coast Hotel vs Parrish (1937). As a constitutional “professor”, Mr. Obama should have known this. Second, the Supreme Court has overturned at least two federal laws based on the Commerce Clause within the last 20 years. They were The United States v. Lopez (1995) and The United States v. Morrison (2000). Lopez and Morrison were landmark cases because they were the first Supreme Court cases in nearly 50 years that set limits to the authority of Congress to regulate commerce. Since Mr. Obama was a constitutional lecturer at the time when both decisions were rendered, I would expect him to have at least been aware of these cases since they were significant in his area of expertise.
Why did the President make these statements last week? I can come up with 3 possibilities. First, he is ignorant of the Constitution and constitutional law and his comments reflect that ignorance. Second, he suffers from foot in mouth disease and simply made two huge gaffes or third, he knowingly misrepresented judicial review and the history of the Court’s use of it to further some goal.
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