Unprecedented? The first precedent for overturning a law — as many high-school civics classes teach — was in 1803 when the high court declared a portion of the Judiciary Act of 1789 to be unconstitutional. That was the landmark case of Marbury v. Madison. Chief Justice John Marshall declared for the court that judges must decide what the law is, and must be guided by the principle that the Constitution overrides any act of the legislature. Marbury v. Madison (5 U.S. 137): It is emphatically the province and duty of the Judicial Department to say what the law is. … 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. Surely the president knew that when he spoke; he was a senior lecturer in constitutional law at the University of Chicago, after all. And as recently as January 2010, the president complained in his State of the Union Address about a much more recent precedent. In his words, the Supreme Court reversed a century of law through its decision in Citizens United v. the Federal Election Commission, holding that the government may not keep corporations or unions from spending money to support or oppose candidates in elections. So if the president knew perfectly well that it would not be unprecedented for the court to strike down a law, why did he say it was? The following day Obama was challenged by the outgoing chairman of The Associated Press, Dean Singleton, at a luncheon appearance at a Washington, D.C., hotel. Dean Singleton, April 3: Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. The president then attempted to walk back what he had said earlier, stating that he referred to overturning laws on an economic issue, and said the court had not done that since the 1930s. Obama, April 3: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So were going back to the 30s, pre New Deal. The Lochner reference is to an era in which the court tended to overturn laws held to infringe on individual or property rights. It takes its name from a 1905 case, Lochner v. New York, in which the Supreme Court ruled 5-4 that a law limiting bakers to a 10-hour work day and a 60-hour workweek was an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract. The president went on to say that the Supreme Court is the final say on our Constitution and our laws, in effect taking back his unprecedented remark. He explained that he had been trying to make the point that its precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. Perhaps so, but significant restraint is a far cry from unprecedented. Furthermore, it is a matter of opinion whether the health care laws requirement for individuals to obtain health insurance is an economic issue that falls under Congress right to regulate interstate commerce, as the laws defenders argue, or a matter of individual rights, as its opponents say. Thats the very question before the court. More to come The matter hasnt ended. Also on April 3, a judge on the 5th U.S. Circuit Court of Appeals in New Orleans took the Department of Justice to the woodshed over the presidents remarks. He demanded that the DOJ explain them — by noon on April 5 — and in no less than three pages, single-spaced. The exchange between Judge Jerry Smith (a Reagan appointee) and Justice Department lawyer Dana Lydia Kaersvang was transcribed by the Wall Street Journals Law Blog: Judge Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities? Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes. Smith: Im referring to statements by the president in the past few days to the effect … that it is somehow inappropriate for what he termed unelected judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And thats not a small matter. So I want to be sure that youre telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases. The president would have been within his rights to say that the Supreme Court hasnt overturned a law like the health care legislation since the days when judges refused to allow limiting the workweek to 60 hours. Thats a matter of opinion with which anyone may agree or disagree. But he misstated the facts (and stirred up avoidable trouble for himself) when he said it would be unprecedented to overturn a law passed by Congress. Update, April 5: Responding to Judge Smiths demand, Attorney General Eric Holdersubmitted a letter April 5 stating in part: Eric Holder, April 5: The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed . . . The power of the courts to review the constitutionality of legislation is beyond dispute . . . [but] the Executive Branch has often urged the courts to respect the legislative judgments of Congress. . . . The Supreme Court has often acknowledged the appropriateness of reliance on the political branches policy choices and judgments. . . .The Presidents remarks were fully consistent with the principles described herein. Holders letter — including numerous legal citations — was 2-1/2 pages long, single spaced. For more information about reprints & permissions, visit our FAQs. To report corrections and clarifications, contact Standards Editor Brent Jones. For publication consideration in the newspaper, send comments to letters@usatoday. Include name, phone number, city and state for verification. To view our corrections, go to corrections.usatoday. Posted 4/4/2012 5:50 PM | Updated 4/5/2012 2:54 PM More from USATODAY STATE-BY-STATE USATODAY.COM in News Old paper mill demolished living remember the dead USATODAY.COM in News Jos. A. Bank bid returned for flaws USATODAY.COM in Money St. Louis Cardinals at Boston Red Sox | USA TODAY | PREVIEW USATODAY.COM in Sports More from the web As stimulus tab rises for Fed, observers worry a bailout is next ArcaMax Eyesores: Visiting the Ugliest Colleges in America (Photos) Travel + Leisure Israel releases 26 Palestinian prisoners as part of peace talks ArcaMax Easiest Schools for an Online Degree Education Portal 99.6% of Healthcare.gov Visitors Did NOT Enroll in Obamacare Compete
Posted on: Thu, 31 Oct 2013 01:39:28 +0000
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