It Would Be “Extraordinary” To Strike Down Health Care Reform Law

Right-wing media are attacking President Obama over comments he recently made in which he pointed out that if the Supreme Court decides to strike down the Affordable Care Act, it will be an “unprecedented” and “extraordinary” step. In fact, the Supreme Court has not struck down a central provision of a landmark federal statute since the 1930s.

Obama: Overturning Health Care Law Would Be An “Unprecedented, Extraordinary Step”

Obama: “I'm Confident” Supreme Court Won't Take “Unprecedented, Extraordinary Step” Of Overturning Major Legislation. During an April 2 joint press conference from the White House Rose Garden, President Obama said:

And I think it's important, and I think the American people understand, and ... I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.

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. 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. [The White House, 4/2/12]

Right-Wing Media Claim Obama's Comments Are Evidence He's “Rejecting” Judicial Review

Fox's Napolitano: Obama Is “Rejecting” Judicial Review Which “Has Not Been Seriously Questioned In 175 Years.” On the April 3edition of Fox News' Fox & Friends, Fox News senior judicial analyst Andrew Napolitano claimed Obama was “rejecting a basic premise of American law that has not been seriously questioned in 175 years.” From Fox & Friends:

STEVE DOOCY (co-host): He's calling the Supreme Court an unelected group of people? Judge Andrew Napolitano joins us live. What was he doing yesterday?

NAPOLITANO: Well, you know, we were scratching our heads when we were watching this and had it played over and over again because this is a graduate of Harvard Law School, the head of the Harvard Law Review and he taught constitutional law at the University of Chicago. Two of the best law schools in the country and he's rejecting a basic premise of American law that has not been seriously questioned in 175 years, which is this.

The courts have the right to review what the Congress does and what the president does and if the court finds that behavior unconstitutional, they can void, they can invalidate what the Congress and the president does. That's our system. That's what preserves the Constitution against the tyranny of the majority. No president has questioned this since Andrew Jackson! [Fox News, Fox & Friends, 4/3/12]

WSJ: “What's Up With That 'Unprecedented'?” In an April 2 editorial, The Wall Street Journal questioned Obama's claim that overturning the health care law would be an “unprecedented, extraordinary, step.” From the editorial:

President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison?


Presidents are paid to be confident about their own laws, but what's up with that “unprecedented” ? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a “democratically elected” legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by “strong” majorities.[The Wall Street Journal, 4/2/12]

The Blaze: “Decision Blocking Laws That Are Passed By 'Strong Majorities' Is Not So 'Unprecedented.” On April 2, The Blaze reported:

How accurate is Obama's charge of “judicial activism,” though? While it's true that the Supreme Court has at times deferred to the will of Congress, or of state legislatures, a decision blocking laws that are passed by “strong majorities” is not so “unprecedented” as he might think. In fact, the Court struck down an act of Congress as recently as 1996 - specifically, the Line Item Veto Act, which passed the Senate by 69-29, and passed the House by unanimous consent. This is a much stronger majority than existed in the case of Obamacare, and ironically, the judges who struck the law down were (with the exception of Clarence Thomas) all from the liberal wing of the court. Another case where the Court struck down a law passed by the Federal Congress concerned the Religious Freedom Restoration Act.

In fact, very recently, the Court arguably took on both the President and the Congress in the case of Hamdan v. Rumsfeld, which not only ruled that the Bush administration could not try detainees under military commissions without express authorization from Congress, but explicitly set aside an existing act of Congress which arguably removed the Court's jurisdiction over the case. Again, the majority in this case consisted of liberal justices, and Justice Anthony Kennedy. [The Blaze, 4/2/12]

In Fact, Striking Down Health Care Law Would Be “Unprecedented” And “Extraordinary”

Cohn: “Rarely In American History Has The Court Struck Down Laws In Decisions That Would Have Such Quick, Widespread Impact.” In a March 29 post to The New Republic, Jonathan Cohn wrote:

Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key [respects], they were different from a potential ruling against the Affordable Care Act.

Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities--in these cases, state legislators who'd passed laws enforcing segregation and prohibiting abortion. The justices' authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.

Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four--a bare majority. And it would bea bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving. [The New Republic, 3/29/12]

Drum: “Very, Very Rarely Has” Supreme Court “Overturned A Major Piece Of Federal Legislation.” In an April 1 Mother Jones article, Kevin Drum wrote:

There are two ways to look at this. The first is through the lens of what it would actually mean to overturn Obamacare. On this score, Jonathan [Cohn] is right: it would be unprecedented. The Supreme Court has handed down plenty of big decisions before, but very, very rarely has it overturned a major piece of federal legislation. Not since the mid 30s, in fact. What's more, it would be overturning this legislation -- a consummately political compromise forged in a consummately political area of public policy -- based on a distinction that I think even most of Obamacare's critics would acknowledge is a very fine point of constitutional law. And that's not all. It would be overturning the law on a party-line 5-4 vote, and it would be doing so in the wake of oral arguments in which several of the justices made arguments so transparently political that it felt more like we were listening in on the Senate cloakroom than the chambers of the Supreme Court.

So yes: in terms of its actual impact, overturning Obamacare would be a very big deal indeed, and among a large chunk of the chattering classes it would certainly lead to a more jaundiced view of the modern Supreme Court as a nakedly political body. [Mother Jones, 4/1/12]

Jeffrey Toobin: It Is “A Grave And Unusual Step For Unelected, Unaccountable, Life-Tenured Judges To Overrule” Government. In an article for the April 9 issue of the New Yorker, CNN senior legal analyst Jeffrey Toobin wrote:

The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered “into commerce,” because others are likely to pay their health-care costs.

Kennedy's last point, about the “heavy burden” on the government to defend the law, was correct--in 1935. That was when the Supreme Court, in deciding Schechter Poultry Corp. v. United States--a case involving the regulation of the sale of sick chickens--struck down the National Industrial Recovery Act, a principal domestic priority of President Franklin D. Roosevelt, on the ground that it violated the Commerce Clause. Two years later, however, the Court executed its famous “switch in time that saved the Nine” and began upholding the reforms of the New Deal. The Justices came to recognize that national economic problems require national solutions, and they deferred to Congress, usually unanimously, to provide those solutions, under the Commerce Clause.

For example, the Justices had no trouble upholding the Civil Rights Act of 1964, which used the clause to mandate the integration of hotels and restaurants. “It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination,” Justice Tom C. Clark wrote, for his unanimous brethren. “But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed -- what means are to be employed -- is within the sound and exclusive discretion of the Congress.” In other words, Justice Kennedy had it backward. The “heavy burden” is not on the defenders of the law but on its challengers. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is -- or should be -- a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government. [The New Yorker, 4/9/12]

SCOTUSBlog: “The Court Rarely Strikes Down Major Laws That Are A Central Part Of The Political Agenda Of The President And His Party.” In an August 10, 2011 post on SCOTUS blog, Ilya Somin, an associate professor at the George Mason University School of Law pointed out that “the Court rarely strikes down major laws that are a central part of the political agenda of the president and his party.” From SCOTUS blog:

Nonetheless, the federal government probably has a better chance than the plaintiffs. The Court's four most liberal Justices have consistently refused to recognize any meaningful limits on Congress's powers under the Commerce Clause. Thus, the mandate will be upheld if even one of the five conservatives votes in its favor. And the conservatives have often been a fractious bunch in federalism cases. For example, Justices Anthony Kennedy and Antonin Scalia voted to uphold a sweeping assertion of federal power in Gonzales v. Raich, which ruled that the power to regulate interstate commerce authorizes Congress to ban the possession of medical marijuana that had never crossed state lines or been sold in any market. Furthermore, the Court rarely strikes down major laws that are a central part of the political agenda of the president and his party. [SCOTUS blog, 8/10/11]