Supreme Court carries right to judicial review
President Barack Obama’s comments at a press conference last Monday regarding the recent Supreme Court arguments about Obamacare are ridiculous. Calling it “unprecedented and extraordinary” that the Supreme Court should overturn “a law that was passed by a strong majority of a democratically elected congress” is absurd and antithetical to the Supreme Court’s purpose and authority as well as the long revered tradition of judicial review.
For those not familiar with judicial review, it was established in 1803 in the landmark case Marbury v. Madison in which Chief Justice John Marshall first declared a law unconstitutional. Marshall outlined that “it is emphatically the province and duty of the Judicial Department to say what the law is.” In other words, it is the job of the Supreme Court to decide whether laws that congress passes comply with our Constitution.
Although not explicitly stated in the Constitution, judicial review can be interpreted from Article III and Article VI, which give the Supreme Court last word on legal disputes and bind all judicial officers to uphold the Constitution, respectively. As the Constitution is the supreme law of the United States, the Supreme Court has ultimate authority to judge the constitutionality of any law that Congress passes.
Accordingly, in the 209 years since Marbury v. Madison, the Supreme Court has been well respected as the ultimate authority on all constitutional and legal cases regardless of their outcome, overturning hundreds of democratically passed laws and statutes at both the federal and state levels. For our president, a former professor of constitutional law, to say that it would be “unprecedented and extraordinary” to overturn Obamacare is so far from reality that he should be ashamed of himself.
Obama is a smart guy. He knows that it would be precedented and ordinary to overturn Obamacare even if it was passed with a “strong majority of a democratically elected congress” — in reality, it barely squeaked by on a rushed and partisan vote.
I’ve heard theories on his motive for saying something so blatantly false — that he’s pre-empting a negative decision and starting a campaign against the court or trying to misinform uneducated voters — but regardless, he’s wrong.
After three days of oral arguments about Obamacare, the law appears to be in jeopardy. CNN analyst Jeffrey Toobin called the oral arguments a “trainwreck for the Obama administration.”
Several justices — including John Roberts and Anthony Kennedy, who are seen as the two swing votes in the case — posed tough challenges to the law. They asked several times for Solicitor General Donald B. Verrilli Jr., who is charged with defending the law, to come up with a limiting principle for the government should Obamacare be declared constitutional.
Under the interstate commerce clause, expanded in Wickard v. Filburn in 1942, the government can regulate not just interstate commerce but also all local commerce that affects interstate commerce. In other words, Congress can regulate all commerce.
But what Congress doesn’t have the power to do is create commerce in order to regulate it, as Roberts pointed out in the second day of oral arguments.
This is exactly what the mandate does. I think Obamacare is unconstitutional and, though by a narrow 5–4 margin, I think the Supreme Court will recognize that if this law stands, the federal government would emerge virtually limitless.
The danger of this was best stated by former President Gerald Ford, who said to a joint session of Congress, “a government big enough to give you everything you need is big enough to take everything you have.”