President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison?
That’s a fair question after Mr. Obama’s astonishing remarks on Monday at the White House when he ruminated for the first time in public on the Supreme Court’s recent ObamaCare deliberations. “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he declared.
Presidents are paid to be confident about their own laws, but what’s up with that “unprecedented”? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a “democratically elected” legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by “strong” majorities.
As it happens, probably stronger majorities than passed the Affordable Care Act. Readers may recall that the law was dragooned through a reluctant Senate without a single GOP vote and barely the 60 votes needed to break a filibuster. Despite a huge Democratic majority in the House, it passed by only 219-212.