President Obama today fired his opening salvo
in an unprecedented attack on the Constitution of
the United States. Regarding the impending Supreme
Court ruling on the health control law, the
President said, “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.”
His factual claims are false. His principle is
a direct assault on the Constitution’s creation of
an independent judicial branch as a check on
constitutional violations by the other two
branches.
It is certainly not “unprecedented” for the
Court to overturn a law passed by “a
democratically elected Congress.” The Court has
done so 165 times, as of 2010. (See p. 201 of this
Congressional Research Service report.)
President Obama can call legislation enacted by
a vote of 219 to 212 a “strong” majority if he
wishes. But there is nothing in the Constitution
suggesting that a bill which garners the votes of
50.3% of the House of Representatives has such a
“strong” majority that it therefore becomes exempt
from judicial review. To the contrary, almost all
of the 165 federal statutes which the Court has
ruled unconstitutional had much larger majorities,
most of them attracted votes from both Democrats
and Republicans, and some of them were enacted
nearly unanimously.
That the Supreme Court would declare as
unconstitutional congressional “laws” which
illegally violated the Constitution was one of the
benefits of the Constitution, which the
Constitution’s advocates used to help convince the
People to ratify the Constitution. In Federalist
78, Alexander Hamilton explained why
unconstitutional actions of Congress are not real
laws, and why the judiciary has a duty to say so:
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.
Because Hamilton was the foremost “big
government” advocate of his time, it is especially
notable that he was a leading advocate for
judicial review of whether any part of the federal
government had exceeded its delegated powers.
Well before Marbury v. Madison, the
Supreme Court recognized that the People had given
the Court the inescapable duty of reviewing the
constitutionality of statutes which came before
the Court. The Court fulfilled this duty in cases
such as Hylton v. U.S. (1796) (Is
congressional tax on carriages a direct tax, and
therefore illegal because it is not apportioned
according to state population?); and Calder v.
Bull (1798) (Is Connecticut change in
inheritance laws an ex post facto law?). The Court
found that the particular statutes in question did
not violate the Constitution. (The ex post facto
clause applies only to criminal laws; the carriage
tax was an indirect tax, not a direct tax.)
However, the Court’s authority to judge the
statutes’ constitutionality was not disputed.
It would not be unfair to charge President
Obama with hypocrisy given
his strong complaints when the Court did
not strike down the federal ban on partial
birth abortions, and given
his approval of the Supreme Court decision (Boumediene
v. Bush) striking down a congressional
statute restricting habeas corpus rights of
Guantanamo detainees. (For the record, I think
that the
federal abortion ban should have been declared
void as because it was not within Congress’s
interstate commerce power, and that Boumediene
was probably decided correctly, although I
have not studied the issue sufficiently to have a
solid opinion.) The federal ban on abortion, and
the federal restriction on habeas corpus were each
passed with more than a “strong” 50.3% majority of
a democratically elected Congress.
As a politician complaining that a Supreme
Court which should strike down laws he doesn’t
like, while simultaneously asserting that a
judicial decision against a law he does like is
improperly “activist,” President Obama is no more
hypocritical than many other Presidents. But in
asserting that the actions of a “strong” majority
of Congress are unreviewable, President Obama’s
word are truly unprecedented. Certainly no
President in the last 150 years has claimed
asserted that a “strong” majority of Congress can
exempt a statute from judicial review. President
Lincoln’s First Inaugural criticized the Dred
Scott majority for using a case between two
private litigants for its over-reaching into a
major national question, but Lincoln affirmed that
the Court can, and should, provide a binding
resolution to disputes between the parties before
the Court. And in 2012, the government of the
United States is one of the parties
before the Court. (And the government is before
the Court in part because the government filed a
petition for a writ of certiorari to ask the Court
to use its discretion to decide the case.)
Alone among the Presidents, Thomas Jefferson
appears as a strong opponent of judicial review
per se. Notably, he did not propose that
Congress be the final judge of its own powers,
especially when Congress intruded on matters which
the Constitution had reserved to the States.
Rather, Jefferson argued that in such a dispute
the matter should be resolved by a Convention of
the States, and the States would be make the final
decision. Given that 28 States have already
appeared as parties in court arguing that the
individual mandate is unconstitutional, we can
make a good guess about what a Convention would
decide about the constitutionality of the health
control law.
President Obama, however, wants Obamacare to be
reviewable by no-one: not by the Supreme Court,
not by the States. You can find professors and
partisans who have argued for such lawlessness,
but for a President to do so is unprecedented.
The People gave Congress the enumerated power
“To regulate Commerce . . . among the several
States.” According to the Obama administration,
this delegation of power also includes the power
to compel commerce. Opponents contend that the
power to regulate commerce does not include the
far greater power to compel commerce, and that the
individual mandate is therefore an ultra vires
act by a deputy (Congress) in violation of
the grant of power from the principal (the
People). Seventy-two percent of the public,
including a majority of Democrats, agrees that the
mandate is unconstitutional. Few acts of Congress
have ever had such sustained opposition of a
supermajority of the American public.
President Obama today has considerably raised
the stakes in Sebelius v. Florida. At
issue now is not just the issue of whether
Congress can commandeer the People and compel them
to purchase the products of a particular
oligopoly. At issue is whether the Court will bow
to a President who denies they very legitimacy of
judicial review of congressional statutes–or at
least those that statutes which garnered the
“strong” majority of 219 out of 435
Representatives.