This news article reports that President Obama has declared that striking down the Affordable Care Act would be “an unprecedented and extraordinary step” and has noted that the justices are “unelected” but the Act was passed by a democratically elected Congress. Presumably that latter observation is offered as a reason to impugn the legitimacy of any invalidation of the Act. The President ought to know better. Judicial review has been around since 1803 and it is neither unprecedented nor extraordinary for the Supreme Court to invalidate laws that violate the Constitution. Nor is the fact that the justices are unelected of much salience – their independence from ordinary political accountability is routinely cited as one of our strengths – by liberals and conservatives alike. The President also says that voiding the law would be an act of “judicial activism,” but what counts as judicial activism is just about as subjective as what constitutes beauty. As Gertrude Stein famously said of Oakland: “There is no there there.”
The President may say what he likes, but it is unseemly and beneath the office of the presidency to hector the justices in a pending case.
Updates: Here is the Wall Street Journal story; here is the Washington Post article; and here is liberal columnist and reporter Ruth Marcus's criticism of the President's remarks.
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