President Obama recently complained about the possibility of the Supreme Court striking down Obamacare. He used the term “unprecedented” and was critical of “judicial activism” engaged in by “unelected” judges. In so doing, he showed his monumental misunderstanding of American government, which should be of concern to every American who values constitutional government.
Let’s take each claim in turn. The first is the assertion that if the Supreme Court were to find the healthcare law to be unconstitutional, it would be acting in an unprecedented way. As my beginning undergraduate constitutional history students know, the Court has struck down all of or parts of federal enactments for over 200 years. Beginning with the best-known constitutional case in American history in 1803, Marbury v. Madison, Supreme Court justices established themselves as members of that branch of government whose province it is to strike down any legislation that is repugnant to the higher law of the Constitution. Ever since, when necessary, the Supreme Court has acted in that capacity. The latest U.S. Government Printing Office tally of Congressional acts declared unconstitutional by the Supreme Court through 2002 lists 158 pieces of legislation struck down. If one adds state and local laws found unconstitutional by the Court, the number is over 1,300.
The president also complains that the judges who threaten his Affordable Care Act are “unelected.” Of course, Obama knows full well that Supreme Court judges, as with all federal judges, must be appointed by the president of the United States, an elected official. Further, all federal judges must be confirmed by action of the Senate, also made up of elected officials. The idea that no elected officials play a part in choosing Supreme Court judges is fiction. What is more perplexing about the president’s statement is that he himself has appointed two Supreme Court judges. If he were to be elected for a second term, he would likely have the opportunity to appoint another Supreme Court judge, meaning that he would have appointed one third of the Court. Also, what the president refuses to recognize is that the Founders did not intend the federal government to be constituted entirely by direct popular election. The government is to be made up of a mixture of elected and appointed officials to resist, among other things, the power of short-lived majorities to destroy long-standing constitutional protections.
Finally, President Obama argues that if the Supreme Court found his healthcare law unconstitutional, it would be an example of “judicial activism” long condemned by conservatives. Again, the president sees any legitimate restraint on his ideological agenda as unwarranted. The careful consideration of whether a piece of legislation is consistent with the powers granted to the legislative branch by the Constitution is not judicial activism. It is doing what the Court is called upon to do—restrain attempts by any branch to usurp power. Real judicial activism occurs when the Court concocts “new rights” which are not found in the Constitution nor approved by any legislature, such as in Roe v. Wade.
President Obama is wrong on all three counts. If the Court strikes down Obamacare, it will be nothing new, and it will not be the product of judicial excess.