Chief Justice John Marshall - President Obama takes History and the Court to Task - image westliberty.edu
President Obama has warned the Supreme Court, ahead of their pending decision on the Constitutionality of his major body of work as President, the national health care reform act, that they are not elected, rather appointed justices, (Wall Street Journal) which is stating the obvious.
His complaint to the Justices pre-decision, rings somewhat hollow coming from a Harvard Law Review student – in effect, the President should have known better and be fully versed in the Separation of Powers brought to bear by the framers, and by the Marshall Court’s decision to bring balance to the rights of the Legislative and the Executive Branch – a key feature of the U.S. Government that any high school student taking a History Overview class should be well aware.
To review:
The Separation of Powers, Article III of the U.S. Constitution as define by Chief Justice Marshall:
'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
''If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.'' To declare otherwise, Chief Justice Marshall said, would be to permit a legislative body to pass at pleasure the limits imposed on its powers by the Constitution.”
Suppose, he said, that Congress laid a duty on an article exported from a State or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath. Finally, the Chief Justice noticed the supremacy clause, which gave the Constitution precedence over laws and treaties and provided that only laws ''which shall be made in pursuance of the constitution'' are to be the supreme laws of the land.”
(Findlaw)
The president’s chief complaint to the Justices follows that a the body of legislatures duly elected, passed a bill that was a) not popular with the general public, and b) the only body of work which can be cited categorically as belonging to his presidency, by a majority. However, if one looks to the original intent, of the Marshall decision, it was to prevent exactly that from occurring (See Above: should the Court not have the ability to oversee the laws passed by the Congress (and signed by the Executive Branch (the President, it would allow Congress to impose laws on the people that were clearly not Constitutional.)
It is the framework of the Separation of Powers to which this nation holds - that no one branch is subject to supremacy but that all are under a system of Checks and Balances to protect the populace from overreaching and burdensome legislation.
Does the Health Care Reform Act meet that test?
It was passed in a rush on in late December, the Democrats literally held the Congress in Session, the bill was not only lengthy, often incomprehensible, with little time for anyone to read the entire bill prior to the vote to pass the legislation – it was a purely politically motivated act. Had the Democrats worked to seriously craft a bill that would have not have not passed muster should the Commerce Clause of the U.S. Constitution be remembered. It was, immediately - and by those causal students of the Constitution to the legislators who opposed, ostensibly for political purposes, but one must give credence to the possibility that, be they Democrat of Republican, one might actually consider the Document of the constitution (or the guidelines for running our Government as set forth by our founders), to be inviolate.
Clearly the President should have known better, and now he complains, yet does not know the outcome of the decision? Is his “pre-emptive” warning to the Supreme Court to rule in his favor (or in Favor of upholding the Mandate a bit premature – that is of course, unless he is certain that his largest body of work will not pass Constitutional muster. The later is most likely.
Should the law be struck down, any portion, it will all fall. This due to the fact that the law was written without a Severability Clause, something either missed in the haste to push the legislation through the Congress, or intentionally included. Intentionally? Yes, in case the Court would at some point be a more liberal to moderate court, one filled with justices who felt that the Constitution was just an archaic guideline to be manipulated or changed at will with the times – the progressive school on the Constitution. Justices of this ilk are installed in Circuit and District Courts, as well as several who sit on the Supreme Court, most notably two appointed by the President himself. However, who would have thought that the people would stand up in twenty seven states and counting and quickly file cases with the Supreme Court to hear the matter on the basis of the Constitutionality of the Bill? Surely not the President, apparently, he never saw it coming.
It is less to do with politics, from the right to the left, and more to do follow the intent of the law as it has been written. It has been known since was discovered to be in violation of the Commerce Clause, that the Bill itself did not contain a severability clause, which would have allowed certain elements to stand on a case by case basis. Therefore, whatever the Justices Decide, will have an impact on the American Public, depending upon whether one is an individual who believes the Government should have more power over the people by mandating they purchase a good, item or service, against their will, or face penalties’, or whether, that mandate may not be in the best interest of the general public.
It would also behoove the President to note that although the Supreme Court Justices are not Elected, he is, along with all the Democrats who were coerced in a process that began in December and ended in March of 2010 and complicit in signing the Law – to recall the election of November 2010. It was an election that was historic in proportion as to the losses of many of those members who passed that bill. The Democrats who pushed that legislation through against the will of the people, are not appointment, therefore, they were fired.
In having read the legislation, in its entirety, which is mind-boggling boring, yet full of areas that are either unclear or obviously lending to bigger government, more oversight of the people by the government, and the power of the government over the people to fine them should they not comply and purchase what the government demands. It is clearly in violation of the Commerce Clause, a first-year law student who is aware of the historical significance as well as legal precedents set by the Marshall Court would know better.
It is simply an overreach of the Congress, and should those Supreme Court Justices rule on the side of the Constitution, the Law Simply will not stand. Suddenly, the President and his calls against judicial activism (or his definition of judicial activism, which is when Justices actually follow the Constitution, as directed), if acting in a bipartisan manner. For decades, regardless of whether the appointees were made by Republican or Democrat Party Presidents, there have been decisions questioned, by Conservatives no less, on the fact that a Justice – redrafted legislation or upheld legislation contrary to the principals of the Constitution, from the bench. One cannot have one’s cake and eat it too.
It is the arrogance of the Executive Branch, however, to lecture the Supreme Court that appears to be missing from this discussion. The fact that the President feels that the Congress, His Congress, and His Legislation who spent more than half of his term of office crafting a bill, that bill should trump the rights of the Judicial Branch. It is the politics in play, not the care of the people, nor the rule of law, but simply an election year. The President faces several strict constructionist (those who adhere to the tenets of the Constitution), and therefore, is most likely showing bravado in the face of a loss, considering the time spent on that bill, rather than on other issues of import, it will leave him without a legacy. However, in some opinions, that legacy is one which he might be better off without, and perhaps he should, if the decision is to overturn the legislation, thank Justice Roberts and his Court for saving him from a legacy of embarrassment.
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