That’s Not How the Constitution Works

In a short speech yesterday, President Obama argued that the health care reform law that is his signature legislative accomplishment will survive scrutiny from the Supreme Court (and outlined some of the popular parts of it that will likely go down the tubes if it doesn’t). Along the way, he made a statement that is breathtakingly simpleminded, at least from a legal standpoint (via):

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.

I realize this is a political, not a legal, argument, and one made by both sides when it suits their purposes, but even with those caveats it’s pretty vacuous. In any other context would anyone – Democrat, Republican, whatever – agree that the fact that a law is passed by a properly elected Congress makes it immune from judicial review? I know that some folks, in a quest to avoid the obvious when it comes to allegations of “judicial activism,”* want to define that term with regards to whether a court strikes down legislation or not, but that’s sort of the point of judicial review, right?

Consider the most obviously egregious breach of the Constitution written into law by Congress. Let’s say, for example, that Congress passed legislation that not only repealed the Criminal Justice Act and did away with appointed counsel in criminal cases, but went further and required all criminal defendants to represent themselves at trial and banned lawyers from the courtroom. Assume it passes with the kind of broad bipartisan support that Obama only dreams the health care reform package had. Constitutional?

Of course not! Such a requirement would violate the Sixth Amendment, which provides:

In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.

No statute or regulation, no matter how popular, can wipe that away. Would we want the Supreme Court to sit by idly and let it happen? I sure as hell wouldn’t. Furthermore, the whole idea that a Congressional mandate should be immune from judicial review assumes that those voting in favor of the legislation are actually concerned about whether it violates the Constitution or not.

Remember back in the 1990s, when Congress first ham-handedly tried to regulate the Internet via the Communications Decency Act? When it passed Congress and was signed by Clinton, civil libertarians loudly protested that it violated the First Amendment. The Supreme Court eventually agreed and struck down the law.

Sometime around when that decision came down – just before or after, I can’t really remember – Nadine Strossen, then head of the ACLU, spoke at my law school. The focus of her speech was the CDA and the ACLU’s battle against it. She related a shameful anecdote from an unnamed (of course) member of Congress. When asked if he didn’t think the CDA had some First Amendment problems, he shrugged and said that the Supreme Court would take care of it. He could never be seen voting against “decency,” after all.

In theory, the judicial branch is supposed to do precisely what Obama is urging the Supreme Court not to do – reign in the other branches when they overstep their authority. It doesn’t mean the courts should strike down legislation willy-nilly or that an act legitimately passed isn’t entitled to some level of deference, particularly in close cases. Maybe health care reform is one of those cases, I don’t know.

But in the end an appeal to popularity is just irrelevant to the Court’s job. Or, at least, it should be.

* It’s not that hard, really. “Judicial activism” is what a court does when it reaches a conclusion with which you disagree. It’s a political jeremiad, not a term of legal art.