A glance at today’s story headlines shows a constitutional crisis about to boil over, with President Barack Obama challenging the Supreme Court to uphold the Affordable Care Act, or remove any lingering doubt that five right-wing justices have turned SCOTUS into a body whose purpose is to rubber-stamp Republican political ideology.
Here is CBS News’s Jan Crawford on a federal appeals court’s angry response to the gauntlet Pres. Obama threw down:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would 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.”
Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.
What Jan Crawford does not mention here is that
the judicial right that 1803 ruling asserted — Marbury v. Madison — has only been invoked once since 1803., in many if not most of the instances in which the Supreme Court overturned federal laws passed by Congress, SCOTUS’s motives were blatantly political. Many of those rulings were themselves later overturned, or corrected via new legislation (i.e., the judicial overreach was corrected). An examination of a list at Congressional Quarterly Press of historically significant federal laws overturned by SCOTUS (thanks to raja in the comments section for providing the link to this list), reveals that many if not most of those judicial decisions were highly controversial even then — and certainly now are not decisions that most of us would want to emulate or use as examples of SCOTUS’s authority to overturn congressional legislation. Another way of saying this would be that, although SCOTUS does have the right to overturn federal laws, and has done so on numerous occasions, very few of those occasions have held up as constitutionally valid.
One such case, which caused a national uproar even at the time, was the Supreme Court’s decision in 1918 to overturn a law Congress had passed two years earlier that effectively ended child labor. If Republicans want to use that decision to argue that striking down a law passed by Congress would not be unprecedented, it certainly will do nothing to change the growing public view of the GOP as a party that means to take us backward to the most barbaric parts of our national history. Indeed, Andrew Koppelman ably addresses just that point in his detailed review of the history of that 1918 case, and its appalling repercussions, at The New Republic. Here is an extended quote:
It took decades for Congress to address the problem. When, at long last, federal legislation was passed, some people raised constitutional objections, but few took them seriously. The objections required the Supreme Court to adopt unheard-of constitutional theories, hamstringing well-established powers on the basis of hysterical fears about a tyrannical federal government. Even the law’s opponents were surprised when the Court took those objections very seriously. Some warned that the Court was overreaching, and that its intervention would seriously hurt large numbers of innocent people, but the Court thought it was more important to rein in Congress.
You might assume I’m talking about health care reform. I’m not. I’m talking about child labor””and a 1918 decision by the Supreme Court that history has not looked kindly upon.
The parallels between the child labor issue and the health care issue are remarkable. In both cases, the legislation in question was the product of a decades-long struggle. Universal health care has famously been a goal of American liberals since Theodore Roosevelt proposed it in 1912. The movement to abolish child labor, for its part, stretches back to the first years after the Civil War: When the Knights of Labor was founded in 1869, its constitution included a provision calling for abolition of child labor, and a similar position was adopted by the American Federation of Labor when it was created in 1886. The National Child Labor Committee was organized in 1904, and the first federal law was introduced in 1906. For his part, Roosevelt supported a national study of the problem.
Only the federal government could address the issue, since no state would act on its own. Even states that did not want child labor could not afford to get rid of it if their competitors still had it. Health care presents a similar problem: Any state that provides good medical care risks attracting sick people from other states. In both cases, unless Congress took action, the problem was going to stay unsolved. And so in 1916, Congress, using its power to regulate interstate commerce, banned the interstate shipment of the products of child labor. When it defended the law in Court, the government explained that this was an interstate problem: ”œThe shipment of child-made goods outside of one State directly induces similar employment of children in competing states.”
Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.
That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared””in tones reminiscent of the Broccoli Objection to Obamacare””that if it upheld the law ”œall freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be ”œpermissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor ”œare of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.
At The Daily Beast, David Dow suggests that overturning the Affordable Care Act would be such a serious overreach of the High Court’s powers under the Constitution that impeachment would be justified:
You think the idea is laughable? Thomas Jefferson disagreed with you.
Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Samuel Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.
The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.
Jennifer Granholm gives us a point of view on the health insurance mandate rarely heard from, and certainly not even on the radar of creepy creatures like Rick Santorum or Paul Ryan, or the five unelected SCOTUS justices who represent the same constituency as do Santorum and Ryan:
They tell it like it is at the beauty shop or barbershop.
I went for a haircut on Saturday. My hairdresser Carmelita and I got to talking about health care and the decision now in the hands of the Supreme Court.
”œDo you have health insurance?” I asked.
”œNo,” she said softly.
”œAre you kidding? It’s just too expensive. No way can I afford it.”
”œWould you buy it if you could?”
”œOf course!” she said, her brow furrowed at the idiocy of the question. ”œI’m still paying off a $3,000 health care bill from last year when I had walking pneumonia and finally went to see the doctor. They ordered an X-ray of my chest, and my life hasn’t been the same since, trying to pay that medical bill. Of course, I’d have health insurance if I could afford it! Anybody would.”
And then she said something that turned the ”œindividual health care mandate” opponents’ argument on its head: ”œI’m already forced to buy health care ”“ but it’s in the emergency room. It’s almost bankrupting me. Do these guys think that’s my choice?”
A ”œhealth care mandate,” it seems, is in the eye of the beholder.