The Supreme Court’s upcoming decision on the constitutionality of the Affordable Care act has prompted some interesting and provocative issues about – and between – the president and the judicial branch, says Gregory P. Magarian, JD, professor of law at Washington University in St. Louis and former clerk for retired Supreme Court Justice John Paul Stevens.
“President (Barack) Obama recently suggested that for the court to overrule a major federal statute would be ‘unprecedented,’” he says.
“He quickly amended his remarks, and properly so. The landmark case of Marbury v. Madison long ago established that the Supreme Court has power to declare federal statutes unconstitutional.”
Some commentators and judges reacted with alarm to Obama’s original comments, suggesting that they amounted to presidential intimidation of the Supreme Court.
Judge Jerry Smith of the Fifth Circuit Court of Appeals went so far as to lecture a Department of Justice lawyer about judicial power, ordering the lawyer to write the court a three-page memo explaining the court’s power to strike down statutes.
“These alarmed reactions reflect historical ignorance,” Magarian says.
“Presidents from the beginning of the republic, notably including Jefferson, Lincoln and Franklin Roosevelt, have verbally castigated the court in terms that make President Obama’s remarks sound like a fan letter.
“Presidents speak out on public issues, and the Supreme Court enjoys no immunity from the bully pulpit. Judge Smith’s tantrum is much more remarkable: for a federal judge to punish a government lawyer because the judge dislikes the president’s opinions reflects a startling lapse of professionalism and judicial temperament.”
Magarian says that even so, federal judges are supposed to be independent, and everyone – including believers in the Affordable Care Act’s constitutionality – should respect that fact.
At least one liberal commentator has argued that Congress should impeach the justices of the Supreme Court if they strike down the act.
“The Constitution does allow Congress to impeach federal judges, like the president, for ‘high crimes and misdemeanors.’ Congress has impeached and tried judges over the years, although it has not impeached a Supreme Court justice since the early days of the republic.
“But anyone who calls for impeachment of the justices based on opposition to their judicial opinions would do well to remember that the last major movement to impeach a member of the court targeted Chief Justice Earl Warren over the issue of school desegregation.
“The best understanding of ‘high crimes and misdemeanors’ is that only official misconduct warrants impeachment. The Supreme Court has made some awful decisions in its history, but even an awful decision is not a crime.”
Related history
The Supreme Court has struck down numerous federal statutes over the decades.
“What the president meant, as his amended remarks made clear, was that no precedent existed for the court to hold that a major economic regulation exceeded federal power,” Magarian says.
“That statement is correct. The court has struck down federal economic regulations, most recently in 1936, but beginning in 1937, the court sharply repudiated its earlier actions and adopted a very broad view of federal power to regulate the national economy.
“Thus, a Supreme Court decision to strike down the Affordable Care Act would be unprecedented — although, in fairness, the ‘individual mandate’ at the heart of the case differs from earlier regulations the court has upheld.”