Above politics: The Supreme Court is supposed to protect the Constitution — despite the president’s shocking political attacks. (Getty Images)
By all accounts, President Obama’s lawyers did a poor job of defending the constitutionality of his signature health-care-reform law in the Supreme Court last week. So he’s rearguing the case himself. On Monday, he declared that it would be an “unprecedented, extraordinary step” for the court to overturn a law “passed by a strong majority of a democratically elected Congress.”
This statement is puzzling, to say the least. It is by no means “unprecedented” or “extraordinary” for the court to strike down the act of a democratically elected legislature.
Has the president not heard of Roe v. Wade (1973), where the court invalidated the democratically enacted laws of all 50 states? And even Marbury v. Madison (1803), which struck down a section of the First Judiciary Act?
How about INS v. Chadha (1983), where the court invalidated over 200 statutory provisions, many enacted by overwhelming bipartisan majorities?
Is the president unaware that the court in recent years has declared unconstitutional the Line Item Veto Act (struck down in 1998), major portions of the Sentencing Reform Act (2005), the Religious Freedom Restoration Act (1997) and two different attempts at campaign-finance law (in 1976 and 2010) — just to name some of the most prominent?
In two recent cases, US v. Lopez (1995) and US v. Morrison (2000), the court invalidated congressional statutes purportedly passed under authority of the Commerce Clause, on the ground that the statutes were not truly a regulation of interstate commerce — essentially the same rationale involved in the health-care case. Both those decisions were controversial, both were decided by narrow 5-4 majorities and both can be distinguished from the current case. But they surely count as “precedents.”
And both statutes were passed by stronger majorities than the Affordable Care Act.
No one agrees with the results of all of the court’s constitutional cases, and some of us think the court should show greater deference toward the elected representatives of the people. But the exercise of judicial review is at the heart of our system of constitutionalism.
The high court’s power to invalidate statutes passed by a democratically elected Congress is not a nefarious conservative creation. Many in President Obama’s party called for the court to invalidate President George W. Bush’s Patriot Act, which passed the Senate 98-1. Obama’s own Justice Department is asking the court to invalidate the Defense of Marriage Act, which passed the Senate 85-12 and was signed by his Democratic predecessor, President Bill Clinton.
The courts properly pay little or no attention to whether a challenged law passed by a “strong majority” or a slim one, because this is irrelevant to any legal issue.
But, in the interest of getting the facts straight, the president might have noted that his health-care law barely squeaked through the Congress, on a largely party-line vote. By contrast, many of the statutes the court has struck down passed Congress by lopsided bipartisan majorities.
What is “unprecedented” is for the president of the United States to make political speeches about cases under consideration by the Supreme Court. The New York Times called his statements a “barbed warning” to the justices that he’ll make their decision a campaign issue if they decide the case the wrong way. That steps over a certain line.
The president’s lawyers did their professional best to defend the legality of the health-care law, in the proper place at the proper time. Now it is the Supreme Court’s duty to decide the case on the basis of their independent legal judgment, without fear or promise of political consequences.
Whatever he thinks will be their decision, President Obama in his official capacity should show respect for the independent role of the court under our Constitution — just as he rightly expects the court to show proper respect for the office of the presidency.
No one knows how the court will rule here. It is the justices’ job to decide the case based on their own independent legal judgment. It is not the president’s place to attempt to influence their decision, after argument, in political forums.
Michael W. McConnell, a former federal appellate judge, now teaches constitutional law at Stanford Law School; he is director of the Stanford Constitutional Law Center and a Hoover Institution senior fellow.