Commentary: Con. Law 101

Commentary: Con. Law 101

Despite Obama's attempts, there is no “political debate” with the Supreme Court. Or is there?

Published April 5, 2012

As the Supreme Court considers President Obama's health-care reform law, the issue of constitutional law arises.


In 1803, Chief Justice John Marshall set forth the doctrine of judicial review in the seminal case Marbury v. Madison in which the Supreme Court ruled that it has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void.


The court noted “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.


“So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.


"Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty]. This doctrine would subvert the very foundation of all written constitutions.”


Every first year law student learned that. Apparently President Obama, the Constitutional law professor, forgot it.


In what has become viewed by many in the legal and political worlds as another broadside against the Supreme Court, the president unloaded on the court this week as he questioned the authority of the nine justices to overturn the Affordable Care Act. Specifically, the president admonished, “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 an unelected group of people would somehow overturn a duly constituted and passed law.”


Really? Has the president forgotten he appointed two of those “unelected” people?


As reports noted, “[t]hough past presidents have occasionally inveighed against judicial activism, legal analysts and historians said it was difficult to find a historical parallel to match Obama’s willingness to directly confront the court.” Of course, Obama is no stranger to leveling such volleys. As you may recall during his 2010 State of the Union address, the president took on the court — with the justices sitting in the front row — over their decision in the Citizens United case. At that time the president charged that the court “reversed a century of law” to “open the floodgates for special interests” to influence elections. We all remember Justice Sam Alito’s quiet refutation of the president’s assertion.


As the court gears up to rule on the president’s signature piece of legislation, why would Obama appear to go out of his way to deliver another stinging indictment of the nine justices who hold the fate of his health-care mandate at the end of their pens? By most standards it is generally bad form for the president to lecture a co-equal branch of government. So why does the president so publicly rebuke the court?


Politics. It will make a man say and do some strange things.


The political calculations by the Obama White House have clearly outweighed any consideration they may have given to the legal or constitutional issues before the court, not to mention any appreciation for the concept of the separation of powers. By yet again pricking the court, the president reemphasizes the subtle point he made while standing in the well of the Congress back in 2010: I plan to run against this Supreme Court.


To be certain, this battle with the court is as much an ideological one for the president as it is constitutional. It cuts to the core of how he believes the Supreme Court should behave in matters important to the Executive Branch. As the president stated very clearly, “I’m confident that this will be upheld because it should be upheld.”


Not showing at least a little bit of deference to the court’s judicial responsibilities; or worse still, casting their actions and decisions as political is a dangerous business. Because they have lifetime tenure Supreme Court, justices can be fiercely independent creatures. So for the president and his allies on the left to argue that the conservative appointees to the Court, whether on an issue like Citizens United or now national health care, look partisan and political exposes assumptions about the four “liberal” justices that may come back to bite. Surely, the president isn’t assuming he has those four votes locked. If so, that may be news to those four justices, but moreover, if true, how does their vote then look less partisan or political?


To press the political narrative even further, the president stressed the “costs” associated with overturning his health-care legislation noting “30 million more Americans stand to benefit once the law is fully implemented by 2014” (nevermind this is wholly irrelevant to the court). Finally he concludes “so there’s not only an economic element and a legal element, but a human element to this. Hopefully, that’s not forgotten in this political debate.”


One problem: There is no “political debate” with the Supreme Court. Or is there?


Michael Steele served as the first African-American chairman of the Republican National Committee. He is a former lieutenant governor of Maryland and a political commentator. He will be providing commentary on all things politics for each week.

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Written by Michael Steele


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