President Obama says that the Supreme Court would be taking an “unprecedented, extraordinary step” by overturning the Patient Protection and Affordable Care Act (Obamacare), since the act was passed by “a strong majority of a democratically elected Congress.” Although the president’s statement confirms his membership in the fraternity of left-wing constitutional law professors (over 100 of whom signed a statement defending the constitutionality of the act), he is wrong on both the history and the math.
Since when is a 219-212 House majority “strong”? But even if Obamacare had passed by large margins in both houses, that would be irrelevant to the Supreme Court’s decision. Whether the law represents good health care policy is also irrelevant. The question before the court is not whether the law is popular or good policy. The question is whether Congress had the constitutional authority to enact it.
President Obama knows this. He would not accuse the Supreme Court of unprecedented judicial activism if it invalidated a federal law restricting abortion or a state law purporting to override the president’s Keystone XL pipeline decision. To the contrary, he would respectfully defer to a judicial holding of unconstitutionality (in the first case under the due process clause and in the second under the supremacy clause), even if the invalidated laws were enacted by truly strong majorities.
Declaring Obamacare unconstitutional would not be unprecedented. According to the Government Printing Office, the Supreme Court invalidated as unconstitutional a total of 1,539 laws between 1789 and 2002. Of that number, 158 were acts of Congress. No doubt President Obama agrees with the court’s constitutional interpretation in some of those judicial rulings and disagrees in others, just as he likely agrees with the policies behind some of those invalidated laws and disagrees with others.
But whether a law is constitutional and whether it is good policy are entirely different questions. When courts invalidate laws on the grounds of bad policy, it is judicial interference in the constitutional role of the legislature. When courts invalidate laws on the grounds of an absence of legislative authority, they are performing their constitutional responsibility as set forth by Chief Justice John Marshall in the seminal case of Marbury vs. Madison. Unfortunately modern political debate confuses the two, leaving liberals and conservatives alike to cry judicial activism whenever the courts invalidate one of their favored laws.
It would be too much to ask that the general political debate rise above this partisan distortion of the judiciary’s critical role in enforcing the liberties of individuals and the constitutional limitations on government power. But it should not be too much to ask that our constitutional law professor president forgo his penchant for hyperbolic rhetoric when it comes to addressing a co-equal branch of government.
Two years ago, President Obama had the unmitigated gall to dress down the justices of the Supreme Court in his State of the Union Address. Now he is laying the groundwork for a political assault on the court should it find his health care legislation to have exceeded Congress’s constitutional authority.
Like so many who have preceded and followed him in the legal academy, the president seems to view the rule of law as nothing more than a cover for politics and the aggregation of power. So long as he’s got power, he seems fully intent on using it with little regard for the Constitution.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.