Last Monday, President Obama tapped in to the ongoing debate surrounding his health care plan, warning the Supreme Court not to engage in "judicial activism." Then, Attorney General Eric Holder was challenged by a federal judge to submit a letter acknowledging the right of courts to strike down unconstitutional laws, which he did.
The debate about the power of federal courts has brought into question a practice known as judicial review. Few question the importance of an independent judiciary with the necessary powers to provide a check on the other branches of government. But the questions surrounding the limits of that power are by no means settled.
To understand the limits of judicial review -- what both the president and attorney general described as "restraint" -- one must trace the history of the practice to its roots.
Courts have been reviewing laws since ancient times. But the practice as it is best known in the United States was created in the landmark case, Marbury v. Madison. Some background: In the 1800 election, Thomas Jefferson beat the incumbent, John Adams, ending Federalist control in both the presidency and the Congress, and handing it over to the Democratic-Republicans. Before Jefferson took office, President Adams began creating scores of new federal courts, and appointed countless Federalist judges, commonly known as the "Midnight Judges." This, of course, was an attempt to undermine the power of the newly elected Democratic-Republican government.
Those deliberate attempts to subvert and manipulate the democratic process are the very acts judicial review is meant to protect against. Adams was clearly attempting to diminish the power of the new president and Congress, both of which had been democratically elected.
This was not at all the case when it comes to the Affordable Care Act. The bill was passed shortly after the American people had elected Mr. Obama and a new Congress. And unlike the frantic appointments of the "Midnight Judges," there was no political, personal, or any other gain for President Obama other than pursuing his wish of universal health care.
In short, reviewing laws like the Affordable Care Act is hardly the purpose of judicial review. The Supreme Court is meant to be the final check on government, preventing laws that present a profound risk to our democracy. Striking down a law passed by a newly elected congress and president seems to do nothing to accomplish that goal.
In over 200 years since judicial review was established in the United States, only some 163 laws have been overturned by the Supreme Court. That is perhaps the best evidence of how seldom the practice ought to be used. Should judicial review become so widely interpreted that every law is subject, suddenly we would live in a country where nine unelected individuals determine the laws we live by. That is hardly what the founders had in mind.
If it weren't for President Adams' vicious effort to crumble American democracy, the Affordable Care Act may never have reached the courts. As the nine unelected justices ponder their decisions, one can only hope they remember that crucial reality.
After all, striking down Adams' appointment of the "Midnight Judges" preserved the foundation of our democracy. Striking down the Affordable Care Act, on the other hand, will only leave millions on the street without health care, and hand over the power of those who were elected to those who were appointed.
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(1) The timing of when a law is passed has nothing to do with whether or not the law is constitutional.
(2) The Supreme Court has the right to review every law passed by Congress. Period. There is no "type of law" that is exempt from judicial review. That is EXACTLY what the Framers had in mind.
(3) Marbury v. Madison did not "create" the power of Judicial Review. It confirmed the existence of that power in the Constitution. Article III of the Constitution clearly extends the judicial Power of the Supreme Court to the Laws of the United States. Also see here http://en.wikipedia.org/wiki/Marbury_v._Madison for an excellent discussion of how the Founders of our Country fully accepted the right of Judicial Review BEFORE the Constitution was written.
(4) If the power of Judicial Review has been exercised to overturn laws 163 times since 1803, that amounts to an average of nearly one per year. I would hardly call something that has occurred almost annually since 1803 to be a rare occurrence.
(5) The only manner in which teh Supreme COurt can serve as a check and/or balance over the power of the Congrees and the PResident is to review laws like Obamacare. To suggest otherwise is ridiculous.
Fortunately, those 9 unelected jurists present a potent defense of the people against rash actions of the elected branches of government (no matter how well intentioned their actions) should they encroach illegally upon the freedom of the citizenry.
It's when they look the other way, and allow egregious usurpations of the rights and dignity of the individual that the SCOTUS betrays the citizenry, not by striking down a broad overreach by the power-hungry...
The Act does need to be before the high court because the issue is in dispute in the lower courts.
Perhaps this message will get to Denmark where they value this type of information and analyzing more than many seem to here in the U.S..
The individual mandate that they've flagged as so contentious was originally brought up by such left leaning organizations as the Heritage Foundation who cited it as an example of individual responsibility and by Mitt Romney who apparently thought it was a good idea in Massachusetts but creeping socialism everywhere else.
Your assertion that it had minority support is misleading. It lost points with center left voters precisely because it didn't go far enough in setting up a single payer system.
And what you also failed to mention is that it passed with a 60 vote supermajority in the senate; again unprecedented in it's requirement to overturn knee jerk filibusters by the GOP.
You don't like "obamacare"? Fine. Come up with something better.
2) There was no health care crisis until federal and state governments controlled 1/2 of the dollars spent on health care. Here's something better than Obamacare (Although I think of it as "PelosiCare" - Obama had given up, and Pelosi found a way to ram it through): get the governments out of health care. Before they got involved, everyone had access, and doctors made house calls.
"Judicial Review" reflects the Supreme Court's obligation to uphold the Constitution, which is the Supreme Law of the Land. The branches of government (be it Congress, the President or the Courts) can only take action that has been affirmatively granted to them by the People through the Constitution. The process of review aims only to ensure that such a grant has been made before the government - and that means any branch, including the democratically-elected ones - has acted consistently with the People's will.
So it's kind of silly to sound so surprised that "every law" could be subject to judicial review because every law is subject to the constraints of the Constitution.
As Chief Justice Marshal wrote,
"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."
You even state how many times laws have been found to conflict with the Constitution and have been overturned, so you are agreeing there is precedent. If the court were to invalidate the individual mandate it would only be unprecedented if you define a very, very narrow set of conditions.
Second, Article 6 states that the Constitution is the supreme law of the land, and all laws must pass constitutional muster. If a law is unconstitutional, it is unconstitutional regardless of when passed or by whom. If a law is constitutionally questioned, that question must be resolved. Usually it is reviewed by lower courts and the appeal process is lengthy and no sure thing (appeals can be denied, thus upholding the status quo ante) so in that manner, this is highly unusual for the Court to hear.
I contend that striking down _any_ law that is unconstitutional - regardless of the public's perception of whether it is a favorable law - preserves the integrity of the Constitution.