March 19, 2012

EMPHASIS IS NOT JUSTIFICATION:

HOLDING COURT (Jeffrey Toobin, MARCH 26, 2012, The New Yorker)

Late last year, a three-judge panel of the D.C. Circuit voted, two to one, to uphold President Obama's health-care reform, known as the Affordable Care Act (ACA). Kavanaugh dissented, primarily on the ground that the lawsuit was premature. In a sixty-five-page opinion, Kavanaugh appeared to offer some advice to the Republicans who are challenging Obama in the election this year. "Under the Constitution," Kavanaugh wrote, "the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional."

In other words, according to Kavanaugh, even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce ACA because he "deems" the law unconstitutional. That, to put the matter plainly, is not how it works. Courts, not Presidents, "deem" laws unconstitutional, or uphold them. "It is emphatically the province and duty of the judicial department to say what the law is," Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since. 

Had the Founders intended to grant the Court that power it would be found in the Constitution, not in a mere judicial opinion.

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Posted by at March 19, 2012 9:00 AM
  

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