He made that statement April 2 in a news conference:
Obama, April 2: Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
As any number of others were quick to point out, there is ample precedent for the Supreme Courtvoiding laws passed by Congress. In fact, overturning unconstitutional laws has been part of the Supreme Court’s job description for more than two centuries.
And the health care law wasn’t passed by a “strong” majority, either. In the House, the final vote was219 to 212, with all Republicans and even 34 Democrats voting in opposition.
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 hisState 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 we’re 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 “it’s 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 law’s requirement for individuals to obtain health insurance is an “economic” issue that falls under Congress’ right to regulate interstate commerce, as the law’s defenders argue, or a matter of individual rights, as its opponents say. That’s the very question before the court.
More to Come
The matter hasn’t 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 president’s 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 Journal‘s 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: I’m 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 ofCongress 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 that’s not a small matter. So I want to be sure that you’re 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 hasn’t overturned a law like the health care legislation since the days when judges refused to allow limiting the workweek to 60 hours. That’s 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.
– Brooks Jackson