The President said something yesterday that just goes against 200+ years of American history, including the notion of the separation of powers and the responsibility of the judiciary. But first, some of that history.

The famous Supreme Court case Marbury v. Madison set up what was the primary purpose of the US Supreme Court. From Wikipedia:

Marbury v. Madison, 5 U.S. 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional". The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

To repeat, this was the "the first time in Western history a court invalidated a law by declaring it ‘unconstitutional’." Pretty big deal. And it’s one that the Court has exercised many times in the past. From

Unconstitutional and Preempted Laws 1789-2002
According to the GPO (Government Printing Office Database):

1789-2002 Acts of Congress Held as Unconstitutional…………………………158

1789-2002 State Statutes held unconstitutional………………………………..935

1789-2002 City Ordinances held unconstitutional………………………………222

1789-2002 State and City laws preempted by Federal laws…………………..224

Total State, Local and Federal Laws Declared Unconstitutional…………….1,315

Total State and Local Law Preempted by Federal Laws…………………………224

Total Laws Overturned, all governments……………………………………….1,539

Now, this table of figures is being quoted all over the Internet today, with the source being, and the page does not have a link back to its source information, so take these figures with a grain of salt. But regardless of the specific numbers, we do know that the Supreme Court has struck down laws as unconstitutional before. That is, after all, the purpose that Marbury v. Madison gave it 209 years ago.

With that in mind, let’s listen in on a statement made to the press yesterday regarding the ObamaCare case before the Supreme Court.

"I am confident 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," President Obama said at a White House event in the Rose Garden today.

"I just remind conservative commentators that for years we have heard 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 am pretty confident that this Court will recognize that and not take that step," Obama said to the White House press.

"Unprecedented." Really? "Extraordinary." Is that so? Even if we did not have that table of numbers above, few of us would really believe that, until now, the court has never struck down a law because it is unconstitutional.

And Dave Kopel at the Volokh Conspiracy blog has an answer for those sticklers who would say that the President was speaking specifically about "a law that was passed by a strong majority of a democratically-elected congress".

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% 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.

[Note: His number of 165 is through 2010, and comes from a GPO document that he does link to, but it doesn’t have a nice table of figures to show that. Kopel’s post is worth reading the whole thing. Also, I honestly titled my blog post before reading his entry. Really.]

The striking down of ObamaCare would not, as the President claims, be a case of "judicial activism"; a term I think he is just employing to try to get a dig in at conservatives and throw some red meat to his supporters. In striking down this law, the justices would not be finding new rights in the Constitution; they would be establishing that the Constitution says only what it says and nothing more. In fact, it is Congress and the President being unprecedented here, insisting that the power to regulate commerce between the States includes the right to compel someone to enter into a contract. "Compulsory contract" is an oxymoron, and the court ought to hold Congress at least to what makes logical sense.

Further, the President already knows that the Supreme Court strikes down laws, because he’s lobbied for it before. From Kopel:

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees…. The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

The President is trying to intimidate the Court and garner some modicum of public support by lying about history. This from a guy who was a Constitutional law professor senior lecturer. It’s incredibly disingenuous and outright dishonest. But will anyone on his side of the aisle call him on it?

Filed under: GovernmentJudiciary

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