Not a Constitutional Crisis

The administration has suffered a setback in its implementation of ObamaCare.  A federal judge has ruled the act unconstitutional.  Theoretically, this means that implementation of law can not continue in the area subject to this court.  The administration, however, is pressing forward.

This has led some to claim that Obama is acting illegally, or is transgressing some great commandment of American Constitutional Law.  Of course a student of history knows that Presidential Administrations have a long history of ignoring the courts when it suits them.  Indeed, the very idea that the courts trump all other branches is the very definition of judicial supremacy, a doctrine conceived of by the courts, but never expressly written into law, either in the constitution or the laws passed by congress, which is given the constitutional task of regulating the scope of the court’s power.

Indeed, such automatic submission to the black-robes is what inspired R.J. Neuhaus to coin the term, “The Judicial Usurpation of Politics”. In point of fact, it is only the occasional thumbing of the nose at the courts that has kept their power even remotely in check for the last 200+ years.

Andrew Jackson once famously said, “They have made their decision, now let them enforce it.”  During the Civil War, Abraham Lincoln simply suspended the right of Habeas Corpus, over the express ruling of the Chief Justice, who admitted that it would be futile to continue to fight to enforce a ruling against the president and entire military.  Of course, it was an extraordinary moment in American History, but it does point out that the power of the courts to direct behavior from the other branches is limited to what the other branches will allow.

This is intentional.  There is supposed to be a tension between branches.   It keeps them all on their toes, and insures that no one brach takes over at the expense of the other two.  Throughout our history the power has ebbed and flowed from one branch to another.  The post-reconstruction period saw a succession of very weak presidents in the face of a very strong congress.   FDR was perhaps the strongest president since Lincoln, who managed to finally get the courts on his side.  Nixon, the courts and congress… well, let’s just leave that one alone…

The point is that the president ignoring a ruling of a circuit court judge is nothing even remotely scandalous.  That is is even discussed shows just how far the Supreme Court has come in convincing the nation that it is Supreme not only over the other courts, but over the other branches.  This was never envisioned, and some judicial resistance is a welcome sight, even if I think the health care plan itself is a terrible idea.



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