Does (or Should) SCOTUS Have the Final Word on the ObamaCare Statute?
By Melancton Smith • Wednesday April 4, 2012 10:16 AM PDT • 8 Comments
A war of words is brewing. Earlier this week The Beacon noted that the President suggested the Supreme Court would be engaging in judicial activism if it struck the individual mandate. Apparently, Judge Jerry Smith of the Fifth Circuit Court of Appeals did not like the President’s statement. Smith was sitting on a panel hearing a case dealing with a hospital challenge to the statute and he has ordered the Department of Justice to respond in writing with the official position of the Government: Do the courts have the power to strike down a federal statute? CBS has this story on Smith and the exchange at argument.
Smith is being silly here. The President raised an issue of judicial activism and has not challenged judicial review–that is, the power of the courts to review the acts or decisions of other branches of government. Smith’s order makes the judiciary look extremely political and serves no useful purpose. If anything, Smith gives Obama’s allies more ammunition for efforts to paint opponents of the health law as favoring unrestrained court power.
Anyone with a modicum of historical knowledge must agree that judicial review is a direct result of popular sovereignty. Because the people are sovereign and government officers are their agents, the executive, Congress, and judges must all interpret the Constitution when performing their duties. Congress and the President should have done this when considering the health care law, and SCOTUS must do so when adjudicating the case now in front of it. As I said in the post below, I don’t think the court would be activist to strike the law and I believe that it should do so. But that is a separate issue from debates about who has the final word on the Constitution.
The real question is whether the Court should be the final word on the matter? That is, is the judiciary supreme? Must the executive and the Congress bow and move on to other issues. Or, should Congress remove the Court’s jurisdiction over the statute via the Exceptions Clause, which gives Congress virtually unlimited authority over the appellate jurisdiction of the federal courts?
“the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
This is but one remedy that might be open to the elected branches but is rarely ever discussed. While I don’t favor it in this case, such matters need to be in the discussion.
Unfortunately, even some of our friends such as Andrew P. Napolitano are weighing in on the controversy and opining:
The Court is his equal, as a branch of government. But since 1803, the Court is superior to the president on having the final say as to what the laws and what the Constitution mean; and the president knows that.
Ouch. Such a comment from a friend of liberty and republican government is disappointing. Marbury did not declare the Supreme Court to be the final arbiter on the meaning of the United States Constitution. Following in the footsteps of state court judges who wrestled with the issue of court power, Marshall simply held that, as a co-equal branch, the Supreme Court must take note of constitutional provisions when deciding a case or controversy. Marshall also suggested that the Court must show deference to the elected branches of government.
Independent Institute Research Fellow William Watkins sheds light on this issue in this commentary article. His recent book Judicial Monarchs gives an in-depth argument against the supremacy advocated by Napolitano and others.
Hopefully, this squabble will die down. Right now it appears that the result will be enhanced court power, which is not a good result.
Tags: Constitution, Healthcare, Law, Nanny State, Personal Liberty, Presidential Power, The State 
Are we to give Obama EVERYTHING? He already overrides the will of the people regularly. What point is the Supreme Court if the dictator-in-chief can simply override them when he doesn’t agree with their decision. That’s WHY we have three branches. It is supposed to provide protection from an out-of-control government (even if we were just talking about a single issue). Where is our protection from his constant attacks on our liberty? Obama thinks everyone should “defer” to his opinion and gets quite disrespectful if anyone does not. Thank God the Court is not populated only with his supporters. We still have a voice there. I can’t wait to see this usurper out of office.
Barbara | Apr 4, 2012 | Reply
I’m a bit confused. That’s OK, because I’m not a scholar. Just your garden variety ham and egger. Are you saying this case shouldn’t even be heard. After all, couldn’t it be construed that if the court does find the act unconstitutional that the decision was an exercise in judicial supremacy?
Did Alexander Hamilton have it wrong when he wrote “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”? (Federalist 78) Was he wrong in his observation that “And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches”? (Federalist 78) Was he worrying needlessly when he warned “To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”? (Federalist 78)
Where does a ham and egger like me fit into this equation. You seem to be saying that the court can’t speak for me even though I think I ought to be the one who actually reigns supreme here.
Phil Dillon | Apr 4, 2012 | Reply
Phil: You ask great questions and make good points. Your position is the majority position. I respect it. I also agree that the ObamaCare statute is an abuse of the Commerce Clause.
I would urge you to give the idea of “departmentalism” a serious hearing. Yes, all three branches must interpret the Constitution when performing duties. Congress should have exercised constitutional interpretation when passing the law, the president should have done the same when passing the law, and the Court must similarly interpret the Constitution when deciding the case before it. Judicial review mandates that the court do so.
The fundamental question I ask is whether the court should be the final word, the generalissmo of constitutional interpretation? Especially when it is unelected and life-tenured. How is it a co-equal brach if its holdings are the end of the constitutional discussion. It becomes the Supreme Branch.
Yes, right now you want the Court to strike down this terrible law and seem willing to concede ultimate constitutional power to it. But there are plenty of cases where the Court has claimed a final word and done much harm to the Constitution and liberty. For example, when numerous states enacted term limits provisions for members of Congress in 1996, the Court struck down these laws and claimed that the Constitution forbade the states from exercising this power. Rotation in Office is arguably a benefit to liberty because it promotes the idea that a congressman should be one of the people and not a member of a perpetual ruling class. Should this be the end of the discussion on term limits? This is just one quick example that comes to mind. We could also discuss medicinal marijuana (Raich case) and others where the Court has been an enemy to liberty.
I simply urge you to rethink the idea that the Court is some great guardian of liberty. It has a job to do, but when it is the Supreme Branch and we the people have zero control over it, that frightens me.
Melancton Smith | Apr 6, 2012 | Reply
Thanks for your response.
The Supreme Court can get it wrong
One of my wife’s ancestors is the family black sheep. His name was John Catron and he served as an associate justice on the Supreme Court. His most infamous vote was one of the deciding votes against Dred Scott.
I’m thinking all these things through. As I said, I’m a ham and egger. My professional bailywick was logistics and my education was in theology. My advantage now is that I’m retired and can devote time to study of things I find interesting.
Since this controversy erupted I’ve re-read parts of the Federalist Papers, particularly 78. I’ve re-read the Constitution and the Bill of Rights. I’ve read the commerce clause several times and it seems somewhat vague to me. I also took notice of article 3, section 2 – the “exceptions clause.” Interesting. Could a President use it to circumvent the Supreme Court?
I’ve also read a couple of briefs – “ex parte Milligan” and “Schechter Poultry v the United States.” I’m not a legal mind, but I found these cases interesting, particularly with their ramifications for our present time. The other thing I like about reading the briefs is that I’m doing the reading without a media filter. I find the “great legal minds” cable tv parades around are nothing but idealogical shills for the Obama administration. I don’t clearly understand what I’m reading, but if I am being propagaandized, I’m doing it to myself rather than falling prey to some latter day Goebbles.
I’m about 2/3rds through Schlesinger’s “The Imperial Presidency.” I’m sure your concerns about the Court are justified. I will take what you’ve written to heart. I’d appreciate your reciprocating for me. Some words from Schlesinger, written in 1973, seem quite timely. When asked how we might come to a place where we’re ruled by an “imperial president” he responded “Through the mystique of the mandate, through the secrecy system, through executive privilege and impoundment, through political and electronic surveillance in the name of national security.”
Thanks
Phil Dillon
Emporia, Kansas
Phil Dillon | Apr 6, 2012 | Reply
If anyone is interested in an abbreviated discussion on the arguments made in the book, Judicial Monarchs, cited in the post, please see my law review article: http://www.law.duke.edu/journals/djclpp/index.php?action=showitem&id=34
Interesting questions here.
Bill Watkins | Apr 6, 2012 | Reply
The whole point of the court power is to limit the majority to the limits outlined in the Constitution. Mr Watkins is suggesting that we restrict this process. There are a lot of things that the court does that I do not like but I am not about to agree to turn congress loose to do what it wants. They do not even consider the constitution. The protection of our liberty is PRIMARILY through the separation of powers. We limit this separation at our peril.
One problem we have that is new in the last century is the division on the court between those who believe that the appropriate method of amending the document is as the document directs and those who think that the Constitution is fluid and can be adjusted “to the times” by judicial decision. In my opinion we need the judges to have more respect for “we the people” and our reserved and EXCLUSIVE right to make any changes.
Harold Helbock | Apr 10, 2012 | Reply