Harvard law professor (and sometime Obama administration official) Laurence Tribe thinks the President's comments on Supreme Court review of the health care law were on the mark; the President of the American Bar Association begs to differ. In a CNN op-ed, Tribe wrote:
Chief executives during our history, including President Andrew Jackson in the 1830s and President Harry Truman in the 1940s, have in fact challenged or threatened to challenge the court's right to command obedience to its understanding of the Constitution, but Obama certainly is not among them.
As a brilliant constitutional lawyer deeply devoted to the rule of law, he has nothing but respect for the critical function that judicial review performs in preserving the American system of constitutional government. Efforts to divine a contrary theory in his remarks were strained at the outset and have grown only more untenable.
The "unprecedented, extraordinary" step he noted the justices would be taking if they were to overturn the Affordable Care Act was, of course, not the step of exercising judicial review, as the court has done ever since Marbury v. Madison in 1803, but the step of second-guessing congressional judgments about how best to regulate a vast segment of the national economy. No one in the world -- certainly none of the justices -- can have been surprised to learn that Obama believes his signature domestic achievement fully complies with the Constitution and ought to be upheld -- or that the Supreme Court has a decades-old tradition of treading lightly when major regulations of interstate commerce come before it.
In a statement issued on Sunday, ABA President William T. Robinson said:
President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.”
We’re gratified that the president recast his remarks Tuesday. He clarified appropriately that “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.”
