Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. [EW: This proposition strikes me as overstated, for reasons I’ve explained before; see, e.g., point 1 here.] Even if, as the president said, it means overturning “a duly constituted and passed law.”
Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality. The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is “the gravest and most delicate duty that this court is called on to perform.”
But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. [EW: True. Plus, for what it’s worth, the actual House vote was 219-212, hardly a “strong majority.”] We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.