The federal court system had its feathers ruffled on April 4, after President Barack Obama made comments about judicial activism and the need for restraint by the court.
Obama said on April 2 that he was “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,” according to USA Today.
This statement refutes the purpose of the Supreme Court, but Obama does raise a good point.
Jerry Smith, a federal court judge in Houston, asked the Justice Department to explain Obama’s comments and to make sure that the president recognized the power of the courts to decide on the constitutionality of congressional acts, according to The Washington Post. The judge went as far as to assign the Department of Justice lawyer Dana Lydia Kaersvang, a three-page homework assignment, single-spaced, explaining Obama’s view on Marbury v. Madison — due Thursday.
This highly amusing turn of events has inspired a pissing contest between the president and the courts. This may end in the Supreme Court ruling on the side of the plaintiff in Department of Health and Human Services v. Florida (Obamacare) if only to show the president its ability to do so.
This is on top of the pissing contest already at work between Democrats and Republicans. Those arguing against the health car law are primarily targeting the individual mandate that requires people to purchase health insurance. They argue that is unconstitutional.
Smith’s questioning of Obama’s statement on Monday was not out of line. Obama, who has been a senior lecturer on constitutional law at the University of Chicago, basically informed the American people that the job of the Court was not to act as a check against the other branches.
Wait a minute, that does not seem quite right.
After all, the Court striking down congressional law is far from unprecedented, even those laws with large majority approval, which the health care bill did not have. In fact, it has been one of the main functions of the Court to act as a defender of the minority against the oppression of the majority.
Unfortunately for Obama, the health care debate has serious political undertones and so will be decided by much more than just case law. In fact, so much precedent has been set in the past by various courts that almost any argument could be justified if a judge had the resolve to look for the cases to support it.
This current tiff between the branches is inspired by an argument as old as the nation itself. The issue of judicial review dates back to Marbury v. Madison — one of the first cases in our country's early years. The Supreme Court established the right to judicial review — the right to decide on the constitutionality of the actions of Congress and the president, even though no such right had been explicitly given in the Constitution.
Since then there has been a continuous tug-of-war between the powers of the Supreme Court and the other two branches. The conflict has included President Andrew Jackson ignoring a ruling in Worcester v. Georgia, Congress removing the Supreme Court’s jurisdiction over Habeas Corpus during the Civil War and the Court-packing attempt by Franklin D. Roosevelt in 1936.
Obama probably intended his statements to win the approval of the American people and get them questioning the decision of the Supreme Court, especially if their decision does not go his way. However, Obama’s wariness of judicial power has legitimate basis. After all, the Court grossly misused its power from the late 1800s to early 1900s to decide our country's economic structure.
This has led the current justices, such as Justice Anthony Kennedy, to decide that the law must be either scrapped altogether or not at all, according to Bloomberg Businessweek. In his mind, striking down parts of the bill, and thereby creating a different law that was not voted on, is a more radical action than overturning the bill as a whole.
The president’s statements, while tactless, raised an important point. The Supreme Court has the power to decide on the constitutionality of law as it has been traditionally granted. However, the decision emanating from this case will have such far-reaching implications that to go into such a resolution without a degree of apprehension would be frivolous indeed.