Does (or Should) SCOTUS Have the Final Word on the ObamaCare Statute?



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.

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