Skip to main content

The 5th Circuit Court's insult to Obama

By Laurence H. Tribe, Special to CNN
updated 4:48 PM EDT, Fri April 6, 2012
President Obama has nothing but respect for judicial authority, says Laurence H. Tribe.
President Obama has nothing but respect for judicial authority, says Laurence H. Tribe.
STORY HIGHLIGHTS
  • Obama's remarks about "judicial activism" have received a wide range of reactions
  • Laurence Tribe: No doubt that president has utmost respect for judicial authority
  • He says 5th Circuit judge misused power by ordering agency to explain remarks
  • Tribe: Distortion of Obama's words undermines open debate about vital issues

Editor's note: Laurence H. Tribe is Carl M. Loeb University professor and professor of constitutional law at Harvard Law School.

(CNN) -- There has never been any doubt that President Obama fully accepts the Supreme Court's authority to render a definitive ruling on the constitutionality of the Affordable Care Act.

Chief executives during our history, including President Andrew Jackson in the 1830s and President Harry Truman in the 1940s, have in fact challenged or threatened to challenge the court's right to command obedience to its understanding of the Constitution, but Obama certainly is not among them.

As a brilliant constitutional lawyer deeply devoted to the rule of law, he has nothing but respect for the critical function that judicial review performs in preserving the American system of constitutional government. Efforts to divine a contrary theory in his remarks were strained at the outset and have grown only more untenable.

The "unprecedented, extraordinary" step he noted the justices would be taking if they were to overturn the Affordable Care Act was, of course, not the step of exercising judicial review, as the court has done ever since Marbury v. Madison in 1803, but the step of second-guessing congressional judgments about how best to regulate a vast segment of the national economy. No one in the world -- certainly none of the justices -- can have been surprised to learn that Obama believes his signature domestic achievement fully complies with the Constitution and ought to be upheld -- or that the Supreme Court has a decades-old tradition of treading lightly when major regulations of interstate commerce come before it.

Laurence H. Tribe
Laurence H. Tribe

After the president made that entirely clear Tuesday, some suggested that it would be best for presidents not to comment on cases pending before the Supreme Court even while the rest of the nation continues to debate the underlying constitutional issues.

I was among those who took that view while others suggested that, as the entire nation continues to discuss the constitutionality of a vital economic measure, artificially muzzling the nation's chief executive ill serves the purposes of open public debate on important issues.

That's something about which people can reasonably differ. But there's no reasonable basis for seeing in the president's comments either a challenge to the court's authority as an independent branch of government or a clumsy attempt to pressure it politically or to influence its deliberations.

"This president knows as well as anyone how utterly implausible it would be to think that the justices might be swayed in their constitutional views by his brief remarks."
Laurence H. Tribe

This president knows as well as anyone how utterly implausible it would be to think that the justices might be swayed in their constitutional views by his brief remarks, which did little more than reiterate a core theme of the government's legal briefs (namely, the critical importance of strong judicial deference to the elected branches on complex matters of economic regulation like national health care policy). This theme has received a full airing in media commentary, congressional hearings, legal scholarship and lower court judicial opinions. Nobody could really believe that the president's candid expression of a view that everyone already attributed to him would move the judicial calculus even a micrometer.

The justices have spent months steeped in more than a hundred legal briefs, presided over one of the most dramatic oral arguments of the past century and are currently engaged in robust internal deliberations. They also live in a world awash with op-eds, heated commentary and all the markers of fiercely divided public opinion. These are men and women accustomed to dealing with politics. They ordinarily approach their duties with the utmost seriousness and, we must hope, are exercising their very highest faculties of judgecraft and constitutional commitment in this case.

There was no disrespect in the president's entirely correct observation that precedent and historical practice alike would lead a suitably cautious court to uphold rather than overturn his signature first-term achievement in providing health insurance to millions of Americans. The fact that health care reform has represented a pressing issue for the nation over the course of a century would indeed make a decision to strike down the law all the more jarring. But the notion that the president's recognition of that fact somehow crossed the Rubicon in our separation of powers by seeking to diminish the court's independence is patently absurd.

That said, we have recently witnessed a shocking misuse of power in relation to these events. But it came from the judiciary rather than the president. Judge Jerry Smith of the 5th Circuit responded to the president's comments by ordering the Department of Justice to submit a three-page, single-spaced memo stating the administration's position on judicial authority to invalidate unconstitutional laws. Attorney General Eric Holder filed that memo Thursday, reiterating the plain import of the president's remarks and stating that "the power of the courts to review the constitutionality of legislation is beyond dispute."

Smith's gratuitous order is little more than a thinly concealed insult to the president, the Justice Department and the administration. It constitutes a shocking departure from norms of judicial behavior. While such partisan bickering might be expected from the minority leader of the Senate or from commentators like Rush Limbaugh, who drew upon Obama's remarks in yet another entry in their relentless attacks on the president, it is hardly to be expected of a federal judge.

As constitutional challenges to the Affordable Care Act have journeyed through the courts since the statute's 2010 passage, the country has engaged in a profound national conversation about the Constitution's import and meaning. Although I remain unpersuaded by constitutional objections to the statute, I respect the efforts of many Americans to give voice to their convictions in constitutional terms. This week's distortion and exaggeration only tarnish the earnestness of such efforts and threaten to undermine the genuine opportunities for constitutional dialogue and disagreement that sustain us as a nation.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Laurence H. Tribe.

ADVERTISEMENT
Part of complete coverage on
updated 12:24 PM EDT, Sat September 20, 2014
John Sutter boarded a leaky oyster boat in Connecticut with a captain who can't swim as he set off to get world leaders to act on climate change
updated 7:22 PM EDT, Fri September 19, 2014
Is ballet dying? CNN spoke with Isabella Boylston, a principal dancer at the American Ballet Theatre, about the future of the art form.
updated 5:47 PM EDT, Fri September 19, 2014
Sally Kohn says it's time we take climate change as seriously as we do warfare in the Middle East
updated 9:02 AM EDT, Fri September 19, 2014
Dean Obeidallah says an Oklahoma state representative's hateful remarks were rightfully condemned by religious leaders..
updated 3:22 PM EDT, Fri September 19, 2014
No matter how much planning has gone into U.S. military plans to counter the Islamic State in Iraq and Syria, the Arab public isn't convinced that anything will change, says Geneive Abdo
updated 11:44 AM EDT, Fri September 19, 2014
President Obama's strategy for destroying ISIS seems to depend on a volley of air strikes. That won't be enough, says Haider Mullick.
updated 9:03 AM EDT, Fri September 19, 2014
Paul Begala says Hillary Clinton has plenty of good reasons not to jump into the 2016 race now
updated 11:01 AM EDT, Fri September 19, 2014
Scotland decided to trust its 16-year-olds to vote in the biggest question in its history. Americans, in contrast, don't even trust theirs to help pick the county sheriff. Who's right?
updated 9:57 PM EDT, Thu September 18, 2014
Ruben Navarrette says spanking is an acceptable form of disciplining a child, as long as you follow the rules.
updated 11:47 AM EDT, Fri September 19, 2014
Frida Ghitis says the foiled Australian plot shows ISIS is working diligently to taunt the U.S. and its allies.
updated 3:58 PM EDT, Fri September 19, 2014
Young U.S. voters by and large just do not see the midterm elections offering legitimate choices because, in their eyes, Congress has proven to be largely ineffectual, and worse uncaring, argues John Della Volpe
updated 9:58 PM EDT, Thu September 18, 2014
Steven Holmes says spanking, a practice that is ingrained in our culture, accomplishes nothing positive and causes harm.
updated 2:31 PM EDT, Thu September 18, 2014
Sally Kohn says America tried "Cowboy Adventurism" as a foreign policy strategy; it failed. So why try it again?
updated 10:27 AM EDT, Thu September 18, 2014
Van Jones says the video of John Crawford III, who was shot by a police officer in Walmart, should be released.
updated 10:48 AM EDT, Thu September 18, 2014
NASA will need to embrace new entrants and promote a lot more competition in future, argues Newt Gingrich.
updated 7:15 PM EDT, Tue September 16, 2014
If U.S. wants to see real change in Iraq and Syria, it will have to empower moderate forces, says Fouad Siniora.
updated 8:34 PM EDT, Wed September 17, 2014
Mark O'Mara says there are basic rules to follow when interacting with law enforcement: respect their authority.
updated 9:05 AM EDT, Tue September 16, 2014
LZ Granderson says Congress has rebuked the NFL on domestic violence issue, but why not a federal judge?
updated 7:49 AM EDT, Tue September 16, 2014
Mel Robbins says the only person you can legally hit in the United States is a child. That's wrong.
updated 1:23 PM EDT, Mon September 15, 2014
Eric Liu says seeing many friends fight so hard for same-sex marriage rights made him appreciate marriage.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT