Columns / Discourse / April 4, 2012

Observing America: Obama takes on the Supreme Court

The Founding Fathers believed in a judiciary branch. They wanted a branch of government that kept both the legislative and executive in line with the U.S. Constitution. This couldn’t be any clearer from Marbury v. Madison, the 1803 Supreme Court decision.

The first Chief Justice of the U.S. Supreme Court, John Marshall, established the doctrine of judicial review in Marbury v. Madison. The Court declared that, “an act of the legislative repugnant to the constitution is void” ( In other words, any law that conflicts with the U.S. Constitution may be stricken down by the judiciary.

That’s why the Roberts Court is currently deliberating Obamacare. Opponents of the healthcare law believe that the individual mandate is out of bounds from the Commerce Clause. Article I, Section 8, clause 3 describes this legislative power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes” (

Associate Justice Anthony Kennedy — the swing vote in the court who determines the vote in contentious cases — said during the Obamacare hearings that the law gives the government the “duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way” ( He, like other conservatives, believes that the federal government cannot force any citizen to purchase any product or service.

This is a legitimate opinion. The Court has a responsibility to deliberate whether the law is constitutional or not. However, President Obama doesn’t think so. In fact, he believes that the Supreme Court doesn’t have a right to declare a law void.

In a recent speech, Obama said that if the healthcare law is declared unconstitutional then that “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress” (

The President is disagreeing with Marbury v. Madison. The Wall Street Journal editors wrote, that “In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a ‘democratically elected’ legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by ‘strong’ majorities.” Even a three-judge panel of the Firth Circuit Court sent the Department of Justice a letter asking whether the President believes that the Supreme Court has a right to review the constitutionality of any law (

This is a scary scenario. Obama, a former constitutional law professor from the University of Chicago, is forgetting the law of the land. He should know better. But this isn’t a new phenomenon. The President criticized the Supreme Court in the 2010 State of the Union Address. Obama stated his opposition to Citizen’s United v. Federal Election Commission — the case that permits unions and corporations alike to give money to candidates ( Obama said, “With all due deference to separation of powers,’ the President said, ‘last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections” (

Obama has to stop this adversarial position against the Courts. A President should not criticize the Supreme Court. It is, after all, an independent branch of government that strives to be apolitical. It should stay that way.

Embrace it, Mr. President. The Court’s here to stay.

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