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Bob McMillanAn Opinion

By Bob McMillan
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Presidents v. The Supreme Court

The recent political chatter about “Obamacare” before the Supreme Court of the United States got a great deal of media attention.  President Obama added fuel to the fire when he declared, “Ultimately, I am 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.”

For someone who was a law professor those words were absurd.  Even if a bill passed unanimously in the house and senate, it could still be overturned – if the law was in violation of the Constitution.

The battle escalated when a three-judge panel of the Sixth Circuit Court of Appeals ordered the justice department to answer whether the Obama administration feels that the courts have the right to strike down a federal law.  In response, the department of justice said that the court had the right to decide the constitutionality of the Affordable Care Act – and any other law passed by the Congress.  Why did President Obama take on the court?

Well, he is not the first president to challenge the Supreme Court.  Back in 1856 the court held that the Congress could not ban slavery in the territories and that blacks were barred from citizenship.  President James Buchanan got directly and incorrectly involved in that case.  Dred Scott v. Sanford.

Next, in 1876, the court had to resolve a presidential election dispute – just as it had to do in the 2000 election involving George W. Bush and Al Gore.  In the 1876 case, one vote decided the case giving Rutherford B. Hayes a victory over Samuel Tilden in the presidential election.

In 1936 came the zenith of battles between the president and the court.  President Franklin D. Roosevelt declared the court was undermining his effort to deal with the nation’s deep Depression.  President Roosevelt wanted to add justices to the court so he could get a majority on his issues.  The court-packing plan failed as the Congress would not go along.

Richard Nixon also fought some of the Supreme Court decisions.  For him, the age of the incumbent justices worked to his advantage.  During his time in the White House, he appointed four new justices to the Supreme Court.

With regard to “Obamacare,” it is all about the individual mandate and whether that mandate violates the Commerce Cause of the Constitution.  We should know the answers to the fight between this president and the Supreme Court by some time in late June.

Robert McMillan Website: