President Barack Obama stirred up a hornet's nest on Monday when he struck out at the Supreme Court, asserting that any move to strike down the individual mandate for health care would be an illegitimate act of judicial activism.
"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," Obama said. "And I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."
Some observers suspect the President was responding to leaked word of the secret vote the Supreme Court took on Friday. Whatever prompted them, the comments stunned political and legal observers, many of whom observed that what was unprecedented here is a president so vigorously trying to intimidate the court.
The U.S. courts were hopping mad. On Tuesday, a three-judge panel at the Fifth Circuit Court of Appeals gave the administration until Thursday to respond to the question of whether it believes the Supreme Court has the authority to overturn the law. The exchange is almost painful to read.
Judge Jerry 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 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 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."
Dana Lydia Kaersvang, Justice Department attorney: "Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no —"
Smith: "I would like to have from you by noon on Thursday a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single-spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice."
"We respect the decisions made by the courts since Marbury v. Madison," Attorney General Eric Holder said Wednesday. "Courts have final say." White House Press Secretary Jay Carney echoed Holder in a separate statement.
But the sting of the attempt is not likely to ease soon. At Volokh Conspiracy, a group blog written by prominent law professors, David Kopel questions the president's use of "strong majority," and the significance of such a majority if it did exist.
"President Obama can call legislation enacted by a vote of 219 to 212 a 'strong' majority if he wishes," Kopel wrote. "But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3 percent of the House of Representatives has such a 'strong' majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously."
What was the president actually trying to accomplish? If he was trying to intimidate the court, a reasonable analysis ought to have warned of backfire risk. All things being equal, is a justice like Anthony Kennedy less likely to tip against Obamacare now that the court's legitimacy has been aggressively challenged? Does acquiescence at this point signal weakness by the court?
Another intriguing question is consistency. The Defense of Marriage Act passed the House 342-67, which is, unlike the 219-212 Obamacare vote, an actual "strong majority." But the Obama administration is refusing to defend it in court and is actually advocating that it be overturned.
The DOMA cases are now moving quickly through federal courts and will likely reach the Supreme Court relatively soon. Obama's majoritarian assertions on Monday are clearly out of step with his views on this and a whole host of other matters, including abortion policy.
It seems quite possible that Kennedy, who is likely to be the swing vote in both Obamacare and DOMA, will strike down both laws, thereby leaving the internal illogic of Obama's statements further exposed.
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at [email protected].