President’s Comments on Health Care Case, Within Serious Constitutional Discourse, Law Prof. Writes

by Jeremy Leaming

Pundits, especially those on the Right, claim President Obama’s recent comments that the Supreme Court should not lightly invalidate a law regulating commerce – in this case the Affordable Care Act – reveal a former constitutional law school professor who doesn’t understand judicial review. (Or according to this Washington Post piece, the president was employing language intended to mislead.)

Actually the president’s words, despite the over-the-top reactions from pundits, were not terribly difficult, even for non-lawyers, to discern. Obama was merely pointing out that the Supreme Court has not, and should not, easily invalidate laws by Congress, especially those that regulate commerce. Attorney General Eric Holder in a letter to a federal appeals court, also said the president’s comments were grounded in principle, not hyperbole.

In a guest column for the Jurist, law school professor Craig Jackson takes note of commentary from MSNBC’s Joe Scarborough and The Wall Street Journal’s editorial page blasting the president’s comments, and argues that Obama had not “forgotten the basic rule,” of judicial review.

Instead Jackson says the president’s comments “had more to do with arguments that have been lobbed back and forth over judicial review, advising judicial restraint, for over two centuries ….” Plenty, Jackson, notes has been written about the need for federal courts to show restraint when considering challenges to laws passed by Congress.

“The president of course agrees and is certainly not stepping out of mainstream constitutional law discourse to suggest that the Court exercise a little discretion when dealing with decisions by a political majority,” Jackson write.

The Post columnist E.J. Dionne Jr. has a different take on the grousing over the president’s commentary – it has irked right-wingers because they’ve been called out. In essence, conservative pundits apparently can’t believe that the so-called judicial activism charge has been leveled against them.

But Dionne warns that progressives “would be wildly irresponsible if they sat by quietly while a conservative Supreme Court majority undid 80 years of jurisprudence.”

In this ACS Issue Brief, Simon Lazarus explores the agenda of the health care law’s opponents – to radically constrain the federal government’s ability to address national concerns.

Lazarus, of the National Senior Citizens Law Center, writes that the challengers’ arguments against the reform law “constitute a bold bid for historic, sweeping constitutional change. If successful, the challenges would be a major step toward resuscitating a web of tight constitutional constraints on congressional authority that conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. In the late 1930s and thereafter, the Supreme Court jettisoned this conservative activist jurisprudence, replacing it with constitutional interpretations supporting Progressive Era, New Deal, Great Society, and kindred reforms.”