Obama's Bogus Complaint About Health Care and Judicial Activism

James Madison once described the judicial branch of our government as "an impenetrable bulwark against every assumption of power in the legislative or executive." The idea is that the courts are uniquely situated to protect both individual liberties and unpopular minorities against the tyranny of the majority. Judges do this (if they do it) by striking down democratically-enacted laws.

President Barack Obama apparently has a different opinion about what the courts should do. Here's what he said yesterday, in response to a question about last week's oral arguments on the constitutionality of the Patient Protection and Affordable Care Act and its controversial individual mandate:

Ultimately I'm confident 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. And I just remind conservative commentators that for years, what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint. An unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident this court will recognize that and not take that step.

Is it really so unprecedented for the Supreme Court to overturn a law passed by a democratically-elected group of lawmakers? In the 2005 case of Boumediene v. Bush, the Supreme Court struck down part of the Military Commissions Act of 2006 in order to recognize habeus corpus rights for prisoners held as enemy combatants at Guantanamo Bay—a decision cheered by then-Sen. Obama himself. Among the justices who signed on to that opinion was Stephen Breyer, who had this to say about the ruling in his recent book Making Our Democracy Work: "One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress's broader purposes."

No, one cannot characterize Boumediene as an example of judicial deference. But so what? Sometimes Congress' broader purposes run counter to the text and history of the Constitution, and in those cases, it's the responsibility of the courts to say so and strike the law down.