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 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 7:03 AM EDT, Fri April 11, 2014
Simon Tisdall: Has John Kerry's recent track record left Russia's wily leader ever more convinced of U.S. weakness?
updated 12:40 PM EDT, Thu April 10, 2014
Mel Robbins says Nate Scimio deserves credit for acting bravely in a frightening attack and shouldn't be criticized for posting a selfie afterward
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
updated 9:45 AM EDT, Thu April 10, 2014
Dr. Mary Mulcahy says doctors who tell their patients the truth risk getting bad ratings from them
updated 9:28 AM EDT, Wed April 9, 2014
Peggy Drexler says the married Rep. McAllister, caught on video making out with a staffer, won't get a pass from voters who elected him as a Christian conservative with family values
updated 7:43 AM EDT, Wed April 9, 2014
David Frum says the president has failed to react strongly to crises in Iran, Syria, Ukraine and Venezuela, encouraging others to act out
updated 4:57 PM EDT, Wed April 9, 2014
Eric Liu says Paul Ryan gets it very wrong: The U.S.'s problem is not a culture of poverty, it is a culture of wealth that is destroying the American value linking work and reward
updated 7:51 AM EDT, Wed April 9, 2014
Frida Ghitis writes: "We are still seeing the world mostly through men's eyes. We are still hearing it explained to us mostly by men."
updated 10:08 AM EDT, Thu April 10, 2014
Chester Wisniewski says the Heartbleed bug shows how we're all tangled together, relying on each other for Internet security
updated 3:26 PM EDT, Wed April 9, 2014
Danny Cevallos says an Ohio school that suspended a little kid for pointing his finger at another kid and pretending to shoot shows the growth in "zero tolerance" policies at school run amok
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT