Federalist

Rather amazingly, President Obama stood at a podium between Canadian prime minister Stephen Harper and Mexican president Felipe Calderon on Monday and declared that it would be “unprecedented” for the Supreme Court to strike down “a law that was passed by a strong majority” of Congress. The law that Obama had in mind, of course, is Obamacare — which was passed by employing the “Cornhusker Kickback” to overcome a Senate filibuster without a vote to spare, twisting enough arms to squeeze it through the House by the tally of 219 to 212, and using the highly unconventional reconciliation process to get the House’s changes back through the Senate when the votes weren’t available to pass those changes via the normal legislative process.

As Fox News reports, Obama said,

“Ultimately, I’m 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.

“And I’d just remind conservative commentators that for years what we’ve 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.”

These comments will surely make a great many Americans scratch their heads and wonder:  How can a graduate of Harvard Law School, a former part-time lecturer at the University of Chicago Law School, and the current president of the United States, suggest an apparent lack of awareness of the doctrine of judicial review?

In Federalist No. 78, Alexander Hamilton famously wrote,

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor [obvious meaning] of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

When Hamilton envisioned how the “complete independence of the courts” should play out, he likely didn’t have in mind this scene:  a future president standing between two foreign leaders at a press event, fancifully informing the Supreme Court justices that if they fail to uphold his signature legislation they’ll be defying “the opinion of legal experts across the ideological spectrum,” and opining that “the justices should understand” what policy advantages the individual mandate allows for. And Hamilton almost certainly didn’t envision having a president seemingly call into question the very existence of the power that the author of Federalist No. 78 outlined as being “essential” to limited government.

Contrary to Obama’s contention, however, the Court’s power to strike down unconstitutional congressional acts has repeatedly been exercised (sometimes legitimately, sometimes not). Here is just a smattering of cases in which the Court has struck down all or part of an act of Congress:  Marbury v. Madison (1803), Dred Scott v. Sandford (1857), Myers v. U.S. (1926), Schechter Poultry Corporation v. U.S. (1935), Bolling v. Sharpe (1954), U.S. v. Lopez (1995), Clinton v. City of New York (1998), U.S. v. Morrison (2000), and Boumediene v. Bush (2008).

For more, Obama might want to consult this list — published by the Government Printing Office — of the 158 cases (as of 2002) in which the Court has voided all or part of an act of Congress.