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Last week
President Obama made some rather shocking comments at a press conference
regarding the Supreme Court's deliberation on the constitutionality of the
Patient Protection and Affordable Care Act, or Obamacare.
His comments belie a grasp of constitutional concepts so lacking that perhaps
the University of Chicago Law School should offer a refund to any students
"taught" constitutional law by then-Professor Obama!
He said,
"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." It
almost sounds as if he believes the test of constitutionally is whether a
majority approves of the bill, as opposed to whether the legislation lies
within one of the express powers of the federal government. In fact, the very
design of the Constitution, with power split amongst two branches of the
legislature which write the laws, an executive who administers the laws, and an
independent judiciary which resolves disputes regarding meaning of the laws,
was designed to thwart popular will and preserve liberty.
President
Obama continued in his comments, "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, there's a good example, and I'm pretty
confident that this court will recognize that and not take that step."
President
Obama seems to misunderstand that the criticism of an activist judiciary is
not that it is overturning unconstitutional federal laws, but instead that it
is usurping the authority to intervene in areas, such as abortion, where the
Constitution reserves authority to the states. In fact, upholding clearly
unconstitutional laws such as Obamacare because the
justices bowed to the "will of the people" or believed the
individual mandate was good social policy could be considered an example of
judicial activism.
The
founders never intended the judiciary to have the last word on whether or not
a law is constitutional. The judiciary is equal to the Congress and the
President, not superior. Representatives, senators, presidents, and judges
all have an independent duty to determine a law's constitutionality. The
founders would be horrified by the attitude of many lawmakers that they can
pass whatever laws they want and federal judges will then determine whether
or not the law is constitutional.
Additionally,
state governments have the authority to protect their citizens from federal
laws that threaten liberty. If the Supreme Court rules that Obamacare is constitutional, I hope state legislators
will exercise their powers to pass legislation allowing their citizens to
opt-out of the national health care plan.
Unfortunately,
even many of my colleagues who correctly argue Obamacare's
unconstitutionality support the President when he asserts the power to send
troops into battle without a declaration of war, or have citizens
indefinitely detained and even assassinated on little more than his own
authority. Other of my colleagues not only cheer the
unconstitutional monstrosity of Obamacare, but
support the President's actions to defy the Senate's appointment powers, and
legislate by executive order.
Even
worse, some members will only challenge a President's unconstitutional
actions if the President is from a different political party. The defeat of Obamacare in the courts would provide a stark reminder
that the limits of government are set by the Constitution, not the will of
the President, Congress, or even the Supreme Court. However, the victory
would be short lived as long as the legislative branch refuses to do its duty
to abide by the Constitutional limits and exercises its powers to ensure the
other two branches do likewise.
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