Balance Of Powers 101

Last week’s oral arguments before the Supreme Court about the Affordable Care Act — and the questions from Justices that suggested skepticism about the law’s constitutionality — seem to have caught some people off guard and caused them to make some very odd statements about how our government works.

Today, for example, President Obama said:  “Ultimately, I am 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.”  He added:  “And I’d just remind conservative commentators that, for years, what we have 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.”

I’m confident that the President — who graduated from one of the country’s best law schools — can’t possibly believe those statements, because they reflect a profound misunderstanding of the balance of powers that exists under the Constitution.  For more than two centuries, it has been well established that the Supreme Court is the ultimate arbiter of whether a law violates the Constitution.  And, since a federal statute becomes a law only if it has passed both houses of Congress and been signed by the President, declarations of unconstitutionality necessarily will occur only after a “majority of a democratically elected Congress” — and often a “strong majority” at that — has approved the law.

Indeed, the whole idea of judicial review is that the democratically elected members of Congress and the President might be swayed by the popular passions of the day, and therefore only judges appointed for life who are removed from politics should determine whether a statute contravenes the Constitution.  To be sure, it’s not a power the Supreme Court has used routinely, but over the last two centuries the Court has not hesitated to strike down statutes that are found to be unconstitutional.  The Court’s power to do so therefore is, quite literally, not “unprecedented.”

Obviously, the President hopes the Court will rule that the Affordable Care Act is constitutional and enforceable.  However, he does our system a disservice by suggesting that the Supreme Court would be overreaching if it decided to the contrary.  If the Supreme Court takes that step, it is simply exercising one of its constitutional powers — just as President Obama and Congress did in enacting the law in the first place.  That’s how our system is supposed to work.

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