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| (Chris Kleponis/Bloomberg / April 2, 2012) |
"Ultimately,
I am 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 just remind conservative commentators that
for years we have heard 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. Well, this is a good
example and I am pretty confident that this Court will recognize that and not
take that step,"
This
is a confusing and alarming statement made by the President, since his
background is in the law. If the President made these remarks, knowledgeable of
the foundation of our country then we should be alarmed at the blatant
disregard he shows for the structure and divided power of our government.
Our Constitutional Government
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| 3 Branches of Government |
The
founding fathers, in the Constitution, split federal power between three
branches of government, each with unique Constitutional authority and powers to
act as a check on the power of the others. The Legislature writes and passes
the laws; the Executive enforces the laws; and the Judicial branch reviews and
rules on the Constitutionality of the laws.
As set out in the Constitution, the President, with Senatorial review,
appoints federal judges and justices for life.
There
are many instances throughout the history of the US of the federal courts,
including the USSCT ruling a federal law unconstitutional. For the President to
suggest that his signature piece of legislation is above judicial review by the
Supreme Court is at the height of hubris. No federal law, short of an Amendment
to the Constitution itself is above a review by the Supreme Court.
Expansion of Federal Power
Justice
Kennedy, commonly considered the swing vote on close 5-4 decisions, stated…
But
the reason, the reason this is concerning, is because it requires the
individual to do an affirmative act… And here the government is saying that the
Federal Government has a duty to tell the individual citizen that it must act,
and that is different from what we have in previous cases and that changes the
relationship of the Federal Government to the individual in the very
fundamental way.
Several
justices also appeared to be concerned in their questioning about a lack of
limit to the expanded federal power sought by the Solicitor General for the
United States through the
Commerce
Clause. Arguably, this Healthcare law assigns the federal government the
power to force an individual to act under the Commerce Clause.
Previous precedent holds that the government
can restrict or regulate an individual actions, but has never required an
individual to take action simply for residing in the country.
To uphold this law would fundamentally change
the role of the federal government to the individual.
Mandate for Car Insurance vs. Health
Insurance
The
great fallacy in the comparison of a mandate of car insurance to a mandate of
health insurance is the fact that
before you are required to purchase auto insurance, the individual must first
purchase a car to drive on public roads. This action – initiated by the individual
– can be regulated by the government. You are not required to
purchase car insurance if you do not own or drive a car. However, in this
law, the Government initiates the action - requiring the individual to purchase
something for no other reason that being alive and living in this country.
Lack of a Severability Clause
Unfortunately
for the President and the supporters of the Healthcare law, the Democrat
Senators removed the severability clause present in almost all
legislation. This clause, when present,
provides that if one section of the law is found unconstitutional, that section
may be severed and the remainder of the law may stand. Without this severability clause, the entire
Healthcare legislation must be struck down if any part of it is found to be unconstitutional in nature.
Judicial Activism vs. Judicial Review
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| United States Supreme Court |
The term judicial activism applies when
judges or justices create or expand a new law or assign rights not previously
found in precedent or in the Constitution. President Obama is attempting
to confuse voters by calling the normal act of judicial review by the misnomer
of judicial activism. The argument before the Supreme Court is that the
Obama Healthcare law expands the power and role of the federal
government. Judicial Review is when the Supreme Court reviews the law
passed by Congress and signed by the President. If they determine that
the power assigned in the law is not present in the US Constitution, they are required
to rule against and strike down the law. Judicial Activism occurs if the
Supreme Court reviews the law, determines the power assigned is not in the US
Constitution, yet makes an exception or believes we should have this power, and
upholds the law.
A Chilling Tone
These
intellectually dishonest comments, along with President Obama’s public
condemnation of the Supreme Court during his 2010 State of the Union address, set
a chilling tone of deep disrespect for our great nation as it was founded.
