The following editorial appeared in the Los Angeles Times:
Borrowing a line from conservative critics of the judiciary, President Barack Obama declared that the Supreme Court would be engaging in “judicial activism” if it threw out the 2010 health care reform law. Responding to a question at a news conference Monday, Obama said it would be “an unprecedented, extraordinary step” if the court overturned “a law that was passed by a strong majority of a democratically elected Congress.” He added that such a move would be a good example of the lack of judicial restraint that conservative commentators have bemoaned for years.
There are several things wrong with the president’s remark. For one thing, it’s simply not true that it would be “unprecedented” for the court to overturn such a law. Since Marbury v. Madison in 1803, the court has seen “judicial review” of laws as part of its responsibility, and over the years it has ruled many unconstitutional. That’s entirely appropriate.
Furthermore, the implication of the remark was that the number of votes in favor of a bill was somehow relevant to its constitutionality. It’s not. Otherwise, whichever party or point of view is in the majority would be free to tyrannize the minority.
That doesn’t mean that the court can do as it pleases. For much of the past century, it has deferred to Congress’ judgment about how to regulate commerce. On Tuesday, Obama noted those precedents and said that “the burden is on those who would overturn a law like this.” And that’s correct: The justices start every review from the presumption that the law in question is constitutional.
During oral arguments last week, however, Justice Anthony M. Kennedy suggested that another burden would apply when considering the health care law’s requirement that all adult Americans carry insurance. If the court found that the mandate was an unprecedented use of federal power to force people into a market they hadn’t chosen to participate in, Kennedy asked, wouldn’t the government face a “heavy burden” to show it was constitutional?
The administration has argued — correctly, we believe — that Kennedy’s view is too narrow. The law regulates the health care market, which virtually everyone participates in, and not just health insurance. But if a majority of the justices frame the issue Kennedy’s way, they could find that lawmakers had gone beyond the boundaries the court had previously set for Congress’ power to regulate commerce.
There’s a natural tension between the Supreme Court’s role as the ultimate arbiter of a law’s constitutionality and Congress’ power to set policy through statute. It’s appropriate for the court to tread carefully and with restraint as it reviews this landmark change in health care policy. But again, just because Democrats in Congress rallied behind it doesn’t mean the court shouldn’t ensure that the law complies with the Constitution.