Millions watched (with awe, I would hope) as the President gave a speech on the White House lawn last week in which he decried the possibility that the Supreme Court might strike down all or part of his Health Care Bill (known to much of the country as Obamacare). The President chastised, with genuine anger, the very notion that a body of people who "are not even elected officials of the people" should have the audacity to overturn a bill that was duly passed by the Congress of the United States. This kind of angry sentiment and outright disrespect for the very work of the Supreme Court conjured up all sorts of images about the kind of president we have in Mr. Obama. This supposed Constitutional Law Professor and former Senator does not know about the separation of powers? Our president does not know that determining the constitutionality of laws passed by the Congress of the United States and by states themselves has been the single most important and consistent job and power of the Supreme Court since John Marshal instituted the power of Judicial Review in the issue of Marbury v Madison during the Thomas Jefferson presidency? Is it possible that our President does not know these things that he, the entire Congress and the government of each state in the union has declared that every high school student MUST know before graduation from high school?
With certainty, he does know that the court can strike down his precious piece of socialistic legislation, and that is the reason he attempted to cast doubt on the Supreme Court and its power. This is the danger in such presidential rhetoric. If he cannot pass socialistic legislation because it is unconstitutional, then he will have to disrupt, in some way, the power of the Supreme Court. His action is not without precedent. Many have questioned the decisions of the Supreme Court; but only one has ever defied it.
As alluded to above, Marbury v Madison created the power of Judicial Review for the Supreme Court. In the most famous case of the court, John Marshal (the Chief Justice of the court) grabbed their most significant power. In this case, John Adams (second President of the United States), a Federalist, was defeated by Thomas Jefferson, an Anti-Federalist. In an attempt to guarantee the continuation of Federalist ideals in government, Adams appointed as many Federalist judges as he possibly could. These were known as “midnight appointments” because they were made in such haste and at such a late hour that they were not able to be delivered and remained on his desk when Jefferson took his office. Jefferson ordered that the letters of appointment be discarded. This action led to a Supreme Court case in which Marbury sued for a writ of habeas corpus which would force the letters of appointment to be sent. John Marshal (a cousin of Jefferson) knew that he was in a dilemma. If he granted the writ, Jefferson might ignore it and the power of the court would be diminished. If he did not grant the writ, Jefferson’s tactics would win. So, he cleverly declared the law that allowed for a writ of habeas corpus in this case was unconstitutional. This decision forever gave the court the power of Judicial Review (or the power to declare laws unconstitutional). This decision also created a quandary for Jefferson. Because of the ruling, he did not have to deliver the appointments; but he gave up power to the Supreme Court. It was a brilliant move by Marshall against another brilliant man, Thomas Jefferson.
Only one president has ever taken a stand against this power of the Supreme Court. Andrew Jackson was arguably, our most powerful president. There was apparently nothing that struck fear in the heart of this president. He had a background unlike many others. He had been a state militiaman, a delegate to the Tennessee Constitutional Convention, lawyer, U.S. Representative and Senator, judge on the Tennessee Supreme Court and perhaps most famously, the victorious general of the Battle of New Orleans fought just after the end of the War of 1812. While this battle was fought (unknowingly) after the war had ended, it caused Americans to feel very good about themselves, as Jackson had defeated the British killing about 2,000 British Regulars with just a few American casualties. He was an instant hit and became known as “Old Hickory” because he was as tough as Hickory wood. He was also the reason that we acquired Florida. In his capacity as a general, he followed Indians who regularly raided settlers in Georgia back into Florida (then held by Spain). He hanged and killed a few people and could have created war with Spain. Faced with demands from Spain to punish Jackson, John Quincy Adams ordered Spain to properly guard against Indian attacks on the U.S. or cede Florida to the U.S. Spain decided on the latter, and thus we acquired Florida.
While Jackson was a long-time Indian fighter, he also had a strange love for their bravery and fighting ability. He turned on them, however, when the Cherokee Nation (one of the five U.S. recognized civilized tribes) was ordered to move off land in Georgia, where gold had been discovered. Living peacefully on the land in accordance with American law and having accepted American law, the Cherokee sued in the Supreme Court. The court found in favor of the Cherokee. Jackson, however, supposedly said, “Marshall has made his decision, let him enforce it.” Then Jackson ordered the Indians removed from Georgia in the middle of one of the worst winters in history. The trail they traveled is known as the Trail of Tears because a full quarter of the Cherokee Nation died on that trail which took them to Oklahoma.
Herein lies the dilemma regarding the power of the Supreme Court. They have the power to declare laws unconstitutional; however, they have absolutely no enforcement power. The enforcement is up to the Executive Branch. Should the president decide not to uphold a ruling of the Supreme Court, he could, presumably, accomplish the same as Jackson. However, it is unlikely that any president in modern society could survive such a move. Frighteningly, there is more talk recently by many that they would simply ignore the Supreme Court’s decisions. Even Newt Gingrich has said that he would ignore certain decisions of the Court.
This battle is certainly not over. It remains to be seen if the High Court will strike down the whole law or just a portion of it. President Obama has been duly chastised in the media for his attacks on the court, and he has sent out others to defend and modify his positions. Will he defy the High Court? I doubt it. After all, there was only one Andrew Jackson. There is not likely to be another of his caliber in the White House. And even if there were to be another as strong as Andrew Jackson, the people would never accept a modern president stripping the Court of its power.
John Wayne Tucker