The sharp questioning of Obama Administration lawyers in Supreme Court sessions this week has prompted much speculation about the fate of the Patient Protection and Affordable Care Act (hereinafter, "Obamacare"). Will the Court declare the individual mandate unconstitutional? If at least five of the nine lawyers on the Court made that declaration, will they go on and declare that the entire act establishing Obamacare must fall as well?
I do not know what the justices on the Supreme Court will do. But my perspective takes a step back from this entire guessing game. I think that the landmark case Marbury v. Madison, announced by the Supreme Court on February 24, 1803, was wrongly decided. On that day in February, the Supreme Court said that it had the authority under the US Constitution to declare an act of Congress unconstitutional, and therefore, invalid. Nowhere in the text of the Constitution is the Supreme Court given the authority to invalidate statutes at either the state or federal level. The Court in the past few days spent much time discussing the text of Obamacare and, in some cases, mocking its 2,700 page length. But we can anticipate that any Obamacare-related declarations by the Court--expected for the end of the Court's term this June--will assume that the Supreme Court has the power of "judicial review."
Another thing that we can anticipate--if the Court declares invalid all or part of Obamacare--will be howls of outrage. Howling is the Left's strong suit, and we will hear plenty. Of course, those of us old enough to have learned, on the afternoon of January 22, 1973, that the Court had, in Roe v.Wade, invalidated not only acts of Congress but the statues then in force in all fifty states, may have a different perspective. A person of the Left remembers that day in January fondly. Reflecting on that same day in January, one on the Right will remember that the Left thought this exercise of judicial review was an unending source of delight.
Considering what he called the Court's "disentitlement" of Congress and the states, JFK's sole nominee on the Supreme Court, Justice Byron White, did not see anything to bring delight. He wrote in his dissenting opinion in Roe v.Wade: "As an exercise of raw judicial power, the Court perhaps has the authority to so what it does today; but in my view, its judgement is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to the court."
If the Court this June gives the Left something to scream about, we cannot expect to hear phrases such as "improvident and extravagant" as, in restless walks, liberals prowl the night. But there could be some good if at least a few individuals on the Left, standing (albeit unconsciously) with Justice White, declare that "the Court perhaps has the authority to do what it does today...." It would be delightful, and long overdue, for more Americans to change the tune by adding (or simply implying) "Perhaps not.
(via The Celebrated Dr. Boli)