Skip to main content

Obama should know better on Supreme Court's role

By Stephen B. Presser, Special to CNN
updated 5:02 PM EDT, Tue April 3, 2012
Stephen Presser says the president's remarks Monday on the Supreme Court's role were mistaken.
Stephen Presser says the president's remarks Monday on the Supreme Court's role were mistaken.
STORY HIGHLIGHTS
  • President said top court would break with precedent if it overturns the health care law
  • Stephen Presser says Obama, who taught constitutional law, should know better
  • He says the Supreme Court has long exercised power to overturn unconstitutional laws
  • Presser: Judicial review doesn't usurp Congress' power; it maintains the rule of law

Editor's note: Stephen B. Presser is the Raoul Berger professor of legal history at Northwestern University School of Law and a professor of business law at Northwestern University's Kellogg School of Management. He signed two of the amicus briefs submitted to the Supreme Court challenging the health care law.

(CNN) -- In what must be the most extraordinary statement of his presidency, Barack Obama on Monday blasted the possibility that the United States Supreme Court might overturn the Affordable Care Act. Obama said the court would take an "unprecedented, extraordinary step" if it overturns the law, because it was passed by "a strong majority of a democratically elected Congress."

Setting aside the point that the ACA did not pass with an overwhelming majority, but by a party-line vote in the Senate and seven votes in the House, and without the support of a single member of the Republican Party, the most astonishing thing about Obama's diatribe was the fundamental misunderstanding of our constitutional tradition it revealed.

Since 1788, in the famous defense of the Constitution set forth by Alexander Hamilton in the Federalist Papers, it has been understood that it is the task of the Supreme Court to rein in majoritarian legislatures when they go beyond what the Constitution permits.

Stephen B. Presser
Stephen B. Presser

This is not, as Obama implies, judicial activism, or political activity on the part of the justices. This is simply, as Hamilton explained, fidelity to the Constitution itself, fidelity to the highest expression of "We the People of the United States," the body whose representatives ratified that Constitution.

That doctrine of judicial review was most famously expressed by the great Chief Justice John Marshall in Marbury v. Madison (1803), but it had been noted not only by Hamilton, but by many other federal judges in the late 18th century. And over the years, in more than 50 instances, courts have struck down unconstitutional behavior by the federal and state legislatures.

Judicial review is not usurpation -- it is the manner in which the rule of law is preserved in this nation. It is certainly true that sometimes courts, and even the Supreme Court, have erred in their interpretation of the Constitution, and some legislative acts that clearly were permitted by the Constitution have been struck down. But if the ACA's individual mandate is rejected, this will be fully within the legitimate exercise of judicial powers.

Opinion: Supreme Court is playing with fire

This is because, as was made clear in the recent arguments in the court, that mandate, for the very first time in history, is an attempt to compel virtually every adult American to participate in commerce. It is not an attempt to regulate commerce -- which the Constitution permits -- but is, instead, an attempt to create and compel commerce, which the Constitution does not authorize.

The Tenth Amendment to the United States Constitution, a measure regarded as fundamental by those who argued for the passage of the Bill of Rights in 1791, provides that the powers not granted to the federal government are reserved to the states and the people thereof.

As the Supreme Court told us in the Lopez (1995) and Morrison (2000) cases, this means that there must be some limits on the powers of the federal government, and it also means that the basic law-making power, the police power, must reside in the governments closest to the people themselves, the state and local governments.

This is our tradition, and the ACA's individual mandate is a fundamental break with that tradition. If, as it should, the Supreme Court declares the individual mandate unconstitutional, it will be reaffirming our traditions, and not usurping them. The president, a former constitutional law teacher, should be ashamed of himself.

Follow us on Twitter: @CNNOpinion.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Stephen B. Presser.

ADVERTISEMENT
Part of complete coverage on
updated 6:10 PM EST, Mon November 24, 2014
If Obama thinks pushing out Hagel will be seen as the housecleaning many have eyed for his national security process, he'll be disappointed, says David Rothkopf.
updated 8:11 AM EST, Tue November 25, 2014
The decision by the St. Louis County prosecuting attorney to announce the Ferguson grand jury decision at night was dangerous, says Jeff Toobin.
updated 3:57 AM EST, Tue November 25, 2014
China's influence in Latin America is nothing new. Beijing has a voracious appetite for natural resources and deep pockets, says Frida Ghitis.
updated 4:51 PM EST, Mon November 24, 2014
Iranian President Hassan Rouhani speaks during a press conference in the capital Tehran on June 14, 2014.
The decision to extend the deadline for talks over Iran's nuclear program doesn't change Tehran's dubious history on the issue, writes Michael Rubin.
updated 2:25 PM EST, Fri November 21, 2014
Maria Cardona says Republicans should appreciate President Obama's executive action on immigration.
updated 7:44 AM EST, Fri November 21, 2014
Van Jones says the Hunger Games is a more sweeping critique of wealth inequality than Elizabeth Warren's speech.
updated 6:29 PM EST, Thu November 20, 2014
obama immigration
David Gergen: It's deeply troubling to grant legal safe haven to unauthorized immigrants by executive order.
updated 8:34 PM EST, Thu November 20, 2014
Charles Kaiser recalls a four-hour lunch that offered insight into the famed director's genius.
updated 3:12 PM EST, Thu November 20, 2014
The plan by President Obama to provide legal status to millions of undocumented adults living in the U.S. leaves Republicans in a political quandary.
updated 10:13 PM EST, Thu November 20, 2014
Despite criticism from those on the right, Obama's expected immigration plans won't make much difference to deportation numbers, says Ruben Navarette.
updated 8:21 PM EST, Thu November 20, 2014
As new information and accusers against Bill Cosby are brought to light, we are reminded of an unshakable feature of American life: rape culture.
updated 5:56 PM EST, Thu November 20, 2014
When black people protest against police violence in Ferguson, Missouri, they're thought of as a "mob."
updated 3:11 PM EST, Wed November 19, 2014
Lost in much of the coverage of ISIS brutality is how successful the group has been at attracting other groups, says Peter Bergen.
updated 8:45 AM EST, Wed November 19, 2014
Do recent developments mean that full legalization of pot is inevitable? Not necessarily, but one would hope so, says Jeffrey Miron.
updated 8:19 AM EST, Wed November 19, 2014
We don't know what Bill Cosby did or did not do, but these allegations should not be easily dismissed, says Leslie Morgan Steiner.
updated 10:19 AM EST, Wed November 19, 2014
Does Palestinian leader Mahmoud Abbas have the influence to bring stability to Jerusalem?
updated 12:59 PM EST, Wed November 19, 2014
Even though there are far fewer people being stopped, does continued use of "broken windows" strategy mean minorities are still the target of undue police enforcement?
updated 9:58 PM EST, Mon November 17, 2014
The truth is, we ran away from the best progressive persuasion voice in our times because the ghost of our country's original sin still haunts us, writes Cornell Belcher.
updated 4:41 PM EST, Tue November 18, 2014
Children living in the Syrian city of Aleppo watch the sky. Not for signs of winter's approach, although the cold winds are already blowing, but for barrel bombs.
updated 8:21 AM EST, Mon November 17, 2014
We're stuck in a kind of Middle East Bermuda Triangle where messy outcomes are more likely than neat solutions, says Aaron David Miller.
updated 7:16 AM EST, Mon November 17, 2014
In the midst of the fight against Islamist rebels seeking to turn the clock back, a Kurdish region in Syria has approved a law ordering equality for women. Take that, ISIS!
updated 11:07 PM EST, Sun November 16, 2014
Ruben Navarrette says President Obama would be justified in acting on his own to limit deportations
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT