April 6, 2012
By Jacob Combs
In case you missed it, there was a bit of judicial feather-ruffling that took place this week which culminated yesterday in an almost comical high-profile homework assignment. On Monday, President Obama spoke to reporters and expressed his confidence that the Supreme Court would find the Affordable Care Act constitutional, calling it an example of the “judicial activism” that conservatives claim to detest and saying, “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.”
Cue the outrage. Rush Limbaugh called the President a “thug,” saying his comments were “chilling” and tantamount to “threatening” the Justices. Senate Minority Leader Mitch McConnell told Obama to “back off,” arguing that anyone worried about (you guessed it) ‘liberty’ should be concerned by his comments. The next day, Obama walked back from his previous rhetoric, clarifying that he would of course respect the Court’s ruling, but noting that the Court has “traditionally exercised restraint and deference to a duly elected legislature.”
Obama’s original comments were clumsy, especially for a former constitutional law scholar. There should be a bipartisan political moratorium on the use of the word “unprecedented”: a Court ruling striking down Obamacare would be no more “unprecedented” than the law itself is an “unprecedented” use of Congress’s spending power, as its critics argued before the Supreme Court. And, of course, it’s a bit humorous seeing Republicans jump suddenly to the defense of the Court’s independence, when several of the party’s candidates for president this year said that they would simply ignore Supreme Court rulings that they didn’t like, and one went so far as to say he would send federal marshals to compel judges to appear before Congress and explain rulings that he didn’t agree with.
The semi-controversly, as it were, should have ended there. But then, in an unexpected twist, Jerry Smith, a Republican-appointed judge on the Fifth Circuit Court of Appeals, lit into a government lawyer arguing a case about another element of the Affordable Care Act, saying that Obama’s comments had “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.” He and the two other Republican-appointed judges on the appeals panel then assigned the Justice Department a homework assignment: a three-page, single-spaced memo explaining why the federal courts have the authority to determine the constitutionality of federal laws.
The Obama administration turned in its homework on time, writing (of course) that “the power of the courts to review the constitutionality of legislation is beyond dispute.” Still, as the New York Times observed, Holder also wrote that the Court has historically operated under the presumption that acts of Congress are constitutional, and that the executive branch has argued before that the Supreme Court should respect Congress’s legislative decisions.
Never one to be outdone in his rhetoric, Jeffrey Toobin, legal analyst for CNN and The New Yorker, called the Fifth Circuit court’s actions a “judicial hissy fit” and an “embarrassment to the federal judiciary.” Toobin’s choice of words aside, he is on to something here. Obama is a politician, and even though his words were poorly chosen, it is of course the right of the executive branch to stand up to another branch of the federal government and defend its own interests. This is the very reason that we have a separation of powers vested in three equal branches of government: the President can throw around words like “unprecedented” all he wants, but ultimately, it is only the judiciary’s responsibility to actually decide the constitutionality of laws.
What surprised so many observers at last week’s Supreme Court arguments was the fact that the language of the questioning seemed so nakedly political, as opposed to being couched in the usual terms of precedent and judicial restraint. The judiciary should stay out of the political process and remaining impartial. In making the Justice Department write a take-home report on a 209-year old decision, Judge Smith went too far, risking the appearance (or even worse, the reality) that the court’s are simply another partisan system in American politics.