[Kenneth T. Cuccinelli II is the Attorney General of the Commonwealth of Virginia, and a leader of the state-level battle against President Barack Obama’s healthcare reforms. He is a GOP candidate for governor.]
With two heads of state at his side, a backdrop of the Canadian and Mexican flags, and in the White House garden — but on a world stage — President Barack Obama declared that it would be judicial activism if his signature piece of legislation, the federal health care law, were declared unconstitutional by the United States Supreme Court. Specifically, he argued that it would be wrong for an "unelected group of people" to declare unconstitutional a law he claimed was passed by "a strong majority of a democratically elected Congress."
While ordinary, private litigants often complain that the legal system is biased against them or is somehow illegitimate when they lose, it is wholly inappropriate for the President of the United States to engage in such an attack on the Court while a case is still being considered, in an attempt to either influence the decision or delegitimize it if it does not come down in his favor.
The Constitution is the law that limits and binds — that governs — government itself. Government must obey the Constitution just as much as the people must obey the laws that govern them. As the supreme law of the land, the Constitution put in place a system of checks and balances among the separate branches of federal government that everyone, especially the president, should respect. Since Marbury v. Madison, the Court has served as a check on the other branches by engaging in judicial review — the process of determining whether or not laws are within the boundaries of the Constitution.
These checks and balances have little meaning unless they are enforced. Just as judges may not exceed their constitutional authority by legislating from the bench, they are duty bound to say “no” when the other branches violate the law. That is not judicial activism; that is an appropriate check on authority.
President Obama's preemptive attack on what the Supreme Court might decide is not just the grousing of a litigant. Rather, he is expressing contempt for the paramount law he took an oath to obey and defend.
This is not to say that the Court is beyond legitimate criticism. However, there is a proper time and a place for such criticism. After decisions are rendered, it is entirely appropriate to question the merits of a decision, making reasoned arguments based on the text of the Constitution or relying on prior decisions of the Court. It is appropriate to discuss what type of justice a president will seek to appoint and how that might have affected the outcome of a ruling.
That the president’s preemptive attack on the Court seemed to be motivated by an attempt to influence the outcome of the case or to delegitimize the decision is underscored by his own statement. It is simply not true that the federal health care law passed Congress by a "strong majority." It squeaked through the House of Representatives on a party-line vote only after virtually every parliamentary trick and gimmick had been deployed; and this after getting out of the Senate without a single vote to spare. Not one. It is hard to conceive of a much "weaker" majority.
Perhaps more damning is the president's assertion that it is wrong or unusual for courts to strike down unconstitutional laws. The Supreme Court has struck down as unconstitutional more than 160 congressional enactments. Furthermore, then-candidate Obama praised the Supreme Court when it struck down a law regarding the detention of enemy combatants at Guantanamo Bay; a law that passed on a bipartisan basis with significantly larger majorities than the health care law enjoyed.
Thus, it appears that the president believes in judicial review so long as the Court agrees with him, but not when the Court does not. Such a view demeans the Supreme Court as an institution and is inconsistent with the concept of a nation of laws as opposed to a nation of men.
Americans are fed up with many things, but perhaps most of all by how government officials — both Democratic and Republican — act unconstrained by the law that governs them.
The president's remarks crossed a serious line in both their tone and their timing. As a former professor of constitutional law, he should know better.
Kenneth T. Cuccinelli, II
Attorney General of Virginia
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