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Obama Flunks Con Law

Monday, April 9, 2012

Here’s how to understand the distinction between judicial activism and ordinary judicial review.

Only a president who happened to be a former law professor could reopen a legal question that Chief Justice John Marshall considered “long and well established” in 1803. President Obama conflated “judicial review” with “judicial activism.” He implied that the Supreme Court would engage in an act of impermissible judicial activism, rather than ordinary judicial review, if it struck down ObamaCare. Americans might be tempted to throw up their hands and claim that, as non-lawyers, they cannot distinguish between the two. That would be a mistake: understanding the distinction does not require a specialized legal knowledge or background.

The term “judicial activism” is not a legal term of art. It does not have its origins in Latin or arcane legal decisions. It is not dreaded “legalese.” It is merely a shorthand way of describing situations in which a court substitutes its policy preferences for its obligations under the Constitution. Consider the ordinary meaning of an “activist.” The term does not refer to someone who is active. A person who runs ten miles every morning before working a strenuous job as a tennis instructor is not considered an “activist.” An activist is someone who “advocates” for a particular cause. It is someone who works to see that certain policy goals are fulfilled.

If the court decides that a statute is unconstitutional, it must strike the law down without taking other considerations into account.

That ordinary meaning of the word “activist” also applies in the judicial context. An “activist judge” is a judge who uses his judicial authority to advocate for a particular cause. When a judge strikes down an unconstitutional law he is merely doing his job, he cannot be considered an “activist” any more than the previously discussed tennis instructor. A judge who strikes down many laws may be considered an “active judge,” but he only engages in judicial activism if he does so because of his devotion to a particular cause, rather than his obligations under the Constitution.

The only question remaining is when does the Constitution require a judge to overturn a statute? Is the president right that the Court should give deference to allegedly “large” congressional majorities even where it believes that a statute is unconstitutional? Is the court obligated, or even allowed, to consider the impact of striking down an unconstitutional statute? The attorney general and lawyers for the Department of Justice have admitted that the Supreme Court established its right to legitimate judicial review in Marbury v. Madison, so I will turn to that decision for the answers to these questions.

Based on Marbury v. Madison, if the court decides that a statute is unconstitutional, it must strike the law down without taking other considerations into account. Justice Marshall unequivocally notes that “an act of the legislature, repugnant to the constitution, is void.” He considered this “too plain to be contested” and “one of the fundamental principles of our society.” He noted that “there is no middle ground”–either the Constitution will limit the powers of the government or it will not. He considered this essential, because if the legislature can exceed its constitutional authority, “the distinction, between a government with limited and unlimited powers, is abolished.”

‘Judicial activism’ is merely a shorthand way of describing situations in which a court substitutes its policy preferences for its obligations under the constitution.

Justice Marshall explicitly considered whether there are any situations in which an “act of legislature [is] repugnant to the Constitution” but where “notwithstanding its invalidity, [it] binds the courts, and oblige[s] them to give it effect?” This is exactly the situation President Obama is advocating. He is urging that the Court uphold ObamaCare even if the Justices find it unconstitutional. Justice Marshall answers his own question by stating that allowing such laws to stand “would seem an absurdity too gross to be insisted upon” and that such a position is “too extravagant to be maintained.” He explains that:

"[T]his doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which according to the principles and theory of our government, is entirely void; is yet in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence . . . it reduces to nothing what we have deemed the greatest improvement on political institutions a written Constitution."

Justice Marshall finally concludes that the Supreme Court is obligated by its oath of office to uphold the Constitution. Requiring a judge to uphold a statute in violation of his oath of office would be “worse than a solemn mockery”–it would be “a crime.”

Accusations of judicial activism must be taken seriously. When it occurs, judicial activism is a serious infringement of our constitutional liberties. However, based on Justice Marshall’s opinion in Marbury, which the Obama administration itself cites as the seminal decision in this area, if the Court considers ObamaCare unconstitutional it must strike the law down. The Court simply cannot take into account the level of support a bill received in Congress or how vital the bill is to the president’s platform. If the court strikes ObamaCare down it will be exercising its constitutionally mandated function. It is President Obama who is positing a theory of judicial deference which is “an absurdity too gross to be insisted upon.”

Howard Slugh is an attorney in Washington, D.C.

FURTHER READING:  Slugh also writes “ObamaCare, Religion, and the Court.” Lee Harris writes “More than Just Broccoli: The Real Slippery Slope of ObamaCare’s ‘Must-Buy’ Provision” and Thomas P. Miller contributes "ObamaCare: Up for Grabs at Supreme Court."

Image by Darren Wamboldt /Bergman Group

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